J-A17031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

LUCKENSON DESRIVIERES

                          Appellant                 No. 2328 EDA 2013


        Appeal from the Judgment of Sentence entered July 8, 2013
           In the Court of Common Pleas of Montgomery County
              Criminal Division at No: CP-46-CR-006042-2012


BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 09, 2014

      Appellant, Luckenson Desrivieres, appeals from the judgment of

sentence of the Court of Common Pleas of Montgomery County entered July

8, 2013. Appellant challenges the voluntariness of his waiver of his privilege

against self-incrimination, arguing it was unlawfully induced. We disagree.

Accordingly, we affirm.

      The trial court summarized the relevant factual and procedural history

of the case as follows:

            A Criminal Complaint was filed on June 19, 2012, against
      [Appellant] for actions that occurred on June 14, 2012 at 1218
      Arch Street in Norristown, Pa. These actions resulted in the
      murders of Marc Estiverne and Shamara Hill. [Appellant] was
      not arrested immediately because his whereabouts were
      unknown. However, after enlisting the help of the Federal
      Bureau of Investigation, the United States Marshals, and the
      Department of Homeland Security due to the belief that
      [Appellant] had fled the state of Pennsylvania, he was located on
      July 11, in Irvington, New Jersey.
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             On July 11, 2012, Special Agent Ricky Miller (hereinafter
     “Agent Miller”) from the Department of Homeland Security, other
     members of his office, and the United States Marshals Fugitive
     Task Force took [Appellant] into custody in Newark, New Jersey.
     Agent Miller was already familiar with [Appellant] because in May
     2010, he made a visit to him at a New Jersey correctional facility
     upon learning that [Appellant] might be able to provide useful
     information in an ongoing investigation the Department of
     Homeland Security was conducting regarding a gang located in
     the Newark area. After this visit, [Appellant] agreed to work
     with Agent Miller as an informant to help advance Homeland
     Security Investigations, and in return, his final order of
     deportation was stopped.
             [Appellant] was also given the opportunity to receive
     monetary awards for work he completed for Homeland Security.
     In his capacity as a confidential informant, [Appellant] conducted
     controlled buys of drugs from December of 2010 until April 2011,
     when the subjects of the investigation were arrested. In the
     days leading up to the culmination of Agent Miller’s investigation,
     he told [Appellant] “that he should go lay low for a while and
     just get out of the area.” More specifically, he was to avoid the
     Newark and Irvington, New Jersey region.                 Therefore,
     [Appellant] decided to go to Norristown, Pa. to live with a
     girlfriend. Agent Miller instructed [Appellant] to keep in contact
     with him, call 911 if there was ever an emergency, and to notify
     Agent Miller and Homeland Security if he felt threatened in any
     way.
             On June 18, 2012, Agent Miller received notification from
     Montgomery County Detectives that they had an outstanding
     murder warrant for [Appellant]. After calling [Appellant] and
     members of his family numerous times to no avail, Agent Miller
     received consent to search 182 Myrtle Street in Irvington, New
     Jersey on July 11, 2012. Upon searching this residence, Agent
     Miller found [Appellant] hiding in a box in the basement.
     Thereafter, [Appellant] was arrested and taken into custody by
     Homeland Security around 11:00 am.
             Montgomery     County    Detectives    were   notified   of
     [Appellant]’s apprehension and he was subsequently placed in
     the processing area of the Homeland Security Office where he
     was interviewed by Agent Miller who asked “biographical
     questions” to verify and update the information in their system
     pertaining to [Appellant]. It was at this point that [Appellant]
     blurted out that he had committed two murders and continued to
     detail the events of June 14, 2012. While this was occurring,

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     Agent Miller said to him, “You know you have rights. You don’t
     have to tell us any of this stuff.” However, [Appellant] continued
     to talk. After he finished recounting the events of June 14th,
     [Appellant] then said “I might as well just kill myself.” Agent
     Miller told him that detectives from Montgomery County were
     coming to speak with him, and that “[b]asically what you need
     to do is answer their questions, tell them the truth, and you
     should be okay.”
            Once Lieutenant James McGowan, Detective Paul
     Bradbury, and Detective Eric Gergel from Montgomery County
     arrived, Agent Miller briefly spoke with Lieutenant McGowan to
     relay the events that occurred prior to their arrival. Detective
     Bradbury on the other hand did not speak to Agent Miller or
     Lieutenant McGowan about what took place before they arrived
     at Homeland Security. Shortly, after their arrival, Detective
     Bradbury gave [Appellant] the Miranda warnings and after he
     consented to give a statement, Detective Bradbury began to
     interview in a question-answer format.          After the written
     question and answer portion of [Appellant]’s interview was
     finished, he consented to provide a videotaped statement for
     Detective Bradbury and Detective Gergel.

Trial Court Opinion, 10/16/13, at 1-4 (citations to notes of testimony

omitted).

     After the trial court denied his motion to suppress, Appellant’s case

proceeded to a trial before a jury. The jury convicted Appellant of several

crimes, including one count of first degree murder, and one count of third

degree murder. Appellant was sentenced accordingly. This appeal followed.

     On appeal, Appellant raises the following question for our review:

     Whether the trial court erred in denying the Motion to Suppress
     evidence because the statements made by [Appellant] to
     Montgomery County Detectives were unlawfully induced by a
     promise by Federal [A]gent Ricky Miller that “everything would
     be okay if he answered the detectives’ questions” in violation of
     his State and Federal constitutional rights as secured by Article I,
     Section[s] 8 and 9 of the Pennsylvania Constitution, and the


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       Fourth, Fifth, and Sixth Amendments to the United States
       Constitution, and in violation of Miranda v. Arizona?

Appellant’s Brief at 4.

       Appellant argues his confession to the Montgomery County detectives

was unlawfully induced by Agent Miller’s promise,1 and the trial court erred

in not suppressing it.2       Specifically, Appellant argues the confession was

obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966).3 To this
____________________________________________


1
  Appellant is not challenging the incriminating statements he made to Agent
Miller, but only those made to the detectives. Appellant, however, notes at
the time he made these statements he had not been given the Miranda
warnings, “because Agent Miller was not just any law enforcement officer to
[Appellant] but someone in a special position of trust to [A]ppellant.”
Appellant’s Brief at 20. We will address the question of the relationship
between Agent Miller and Appellant infra. Here, we note Appellant made
the incriminating statements to Agent Miller while he was gathering
biographical information from Appellant. “There is no requirement that a
suspect be advised of any Miranda rights where the police seek
biographical, general information[.]” Commonwealth v. Friedman, 602
A.2d 371, 378 (Pa. Super. 1992). See also Commonwealth v. Garvin, 50
A.3d 694, 698 (Pa. Super. 2012) (“Generally speaking, general information
such as name, height, weight, residence, occupation, etc. is not the kind of
information which requires Miranda warnings since it is not information
generally considered as part of an interrogation”) (citation omitted).
2
  “In reviewing a suppression ruling, this Court is bound by the lower court’s
factual findings that find support in the record but we are not bound by the
court’s conclusions of law. The determination of whether a confession is
voluntary is a conclusion of law and, as such, is subject to plenary review.”
Commonwealth v. Templin, 795 A.2d 959, 961 (Pa. 2002) (citations
omitted).
3
   See Commonwealth v. Jones, 322 A.2d 119, 124 n.7 (Pa. 1974)
(“recognizing distinction between coerced confession claim and claim that
confession is inadmissible under Miranda[.]”); see also Templin, 795 A.2d
at 966. Appellant is not challenging the voluntariness of his confession, only
the voluntariness of his waiver.



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end, Appellant argues that the close relationship between Agent Miller and

Appellant and the fact Agent Miller kept his past promises to secure two

extensions of his immigration status and paid him over $20,000 for his

undercover work “in exchange for his cooperation[,]” poisoned Appellant’s

waiver. Appellant’s Brief at 20. In support, Appellant cites Commonwealth

v.   Williams,   650   A.2d   420,   427   (Pa.   1994),   Commonwealth     v.

Levanduski, 907 A.2d 3, 24 (Pa. Super 2006), and Commonwealth v.

DiStefano, 782 A.2d 574, 579 (Pa. Super. 2001), for the proposition that a

“long line of Pennsylvania appellate decisions have repeatedly held that the

focus of the [voluntariness] analysis is not the subjective motives of the

police officer, but rather on the objective impact of the officer’s actions on

the state of mind of the suspect.” Appellant’s Brief at 21-22.

      For the reasons stated below, we conclude the trial court did not err in

denying Appellant’s motion to suppress the confession.

      In determining whether a defendant’s waiver of his Miranda
      rights is valid, a trial court must consider: (1) whether the
      waiver was voluntary, in the sense that the waiver was not the
      result of governmental pressure; and (2) whether the waiver
      was knowing and intelligent, in the sense that it was made with
      full comprehension of both the nature of the right being
      abandoned and the consequence of that choice.                The
      Commonwealth bears the burden of establishing that a
      defendant knowingly and voluntarily waived his Miranda rights.
      Factors to be considered in determining whether a waiver is valid
      . . . include: the duration and means of interrogation; the
      defendant’s physical and psychological state; the conditions
      attendant to the detention; the attitude exhibited by the police
      during the interrogation; and any other facts which may serve to
      drain one’s powers of resistance to suggestion and coercion.



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J-A17031-14



Commonwealth v. Patterson, 91 A.3d 55, 76 (Pa. 2014) (citations

omitted).

     In challenging the voluntariness of waiver, Appellant relies on

Commonwealth v. Gibbs, 553 A.2d 409 (Pa. 1989) and Commonwealth

v. Morgan, 606 A.2d 467 (Pa. Super. 1992).          Reliance on Gibbs and

Morgan, however, is misplaced. Unlike Gibbs and Morgan, here there is

no inducement to relinquish any right. In Gibbs, the Supreme Court

     concluded that the defendant had been impermissibly induced to
     make a confession without consulting an attorney when in
     response to the defendant’s question, “Maybe I should talk to a
     lawyer. What good would it do me to talk to you?” a police
     officer responded, “I really don’t know what good it would do.
     The only thing is I would tell the District Attorney you
     cooperated for whatever good that would be, but I would have
     no idea whether it would help your case or not.” [Gibbs, 553
     A.2d at 409].

Commonwealth v. Laatsch, 661 A.2d 1365, 1366 (Pa. 1995).

     In concluding that the officer impermissibly induced defendant not to

pursue further his equivocal request for counsel, the Supreme Court noted:

     In the present case under review, we hold that the statement by
     the authorities to [Gibbs] was an impermissible inducement and
     thereby tainted his admissions.        By conveying the distinct
     impression that the district attorney would be told of his
     cooperation in giving a confession on the spot, there occurred an
     inescapable inducement which cannot be condoned under our
     law. . . . Promises of benefits or special considerations, however
     benign in intent, comprise the sort of persuasion and trickery
     which easily can mislead suspects into giving confessions. The
     process of rendering Miranda warnings should proceed freely
     without any intruding frustration by the police. Only in that
     fashion can we trust the validity of subsequent admissions, for if
     the initial employment of Miranda is exploited illegally,
     succeeding     inculpatory    declarations    are    compromised.

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J-A17031-14


       Misleading statements and promises by the police choke off the
       legal process at the very moment which Miranda was designed
       to protect.

Gibbs, 533 A.2d 410-11.

       “Gibbs dealt with an offer of lenient treatment in return for the

defendant’s cooperation in the investigation of the crime with which he had

been charged, i.e., an incriminating statement implicating the defendant

himself.” Laatsch, 661 A.2d at 1367.

       This is not the case here. The statement at issue here is: “Basically,

what you need to do is answer [the detectives’ questions], tell them the

truth, and you should be okay.” N.T. Suppression, 4/1/13, at 54. There is

no offer, promise, or subterfuge of any sort to induce Appellant to waive his

right against self-incrimination. “The promise here did not even concern a

recommendation to talk to the [c]ourt or the prosecutor with respect to the

overall prosecution, contrast Gibbs, nor was there a promise that a

confession would result in no charges being filed.”    Templin, 795 A.2d at

967 (citing Commonwealth v. Nester, 709 A.2d 879, 883 (Pa. 1998)).4

       Additionally, to the extent the statement uttered by Agent Miller could

be construed as a promise of some sort, the statement could not have

____________________________________________


4
  See also Laatsch, 661 A.2d at 1367 (“[T]here is a clear distinction
between an offer conditioned on a confession, and an offer seeking
cooperation in the investigation of others without the prerequisite of self-
incrimination. The former is clearly an impermissible inducement to waive
one’s right against self-incrimination; the latter is not.”).




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“choke[d] off the legal process at the very moment which Miranda was

designed to protect” because it was not made in the process of rendering the

Miranda warnings.           In fact, the context surrounding Agent Miller’s

statement is temporally and circumstantially distinct and separate from the

context surrounding the waiver of his Miranda rights. To the extent timing

of the alleged improper statement is relevant, we also note that Agent

Miller’s statement preceded, not followed, the administration of the Miranda

warnings.5     Finally, unlike Gibbs, Appellant here did not invoke, in any

fashion, or at any time, his intention to exercise his Miranda rights. In light

of the foregoing, we conclude the instant matter is distinguishable from

Gibbs.




____________________________________________


5
  See Friedman, 602 A.2d at 378. (“In Gibbs, the statement found to be
an inducement was made to defendant after he was read his rights and after
he asked a question, ‘What good would it do me to tell you?’ This sequence
of events rendered the detective’s response of possible benefits by telling
the court of defendant’s cooperation an inducement.”); Commonwealth v.
Lester, 572 A.2d 694, 697 (Pa. Super. 1990) (“We note that the Gibbs
court restricted its decision to situations where improper offers by the police
in exchange for cooperation by the defendant followed the administration of
Miranda warnings.”). See also Templin, supra, at 965 (“Obviously, an
inducement to waive following upon an assertion of rights after being given
Miranda warnings implicates more than a due process concern with
voluntariness of confession; it may burden the defendant’s constitutional
privilege against compulsory self-incrimination or the right to counsel.”);
Morgan, infra.




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       Morgan, a Superior Court’s decision that relied upon and extended

Gibbs,6 does not change our conclusions. In Morgan, this Court found that

the interrogating officer, after advising the defendant of his Miranda rights

and obtaining a confession from him regarding a theft, improperly induced

defendant to waive his right to remain silent on other crimes by promising

defendant to inform the district attorney of his cooperation.          Defendant

confessed to committing the other crimes, and this Court affirmed the trial

court’s order granting defendant’s motion to suppress.         In concluding that

the promise was impermissible, we noted:

       It is the inducement which leads to overcoming resistance to
       police procedures with which Gibbs is concerned and not the
       specific right waived[.] . . . Gibbs speaks to the fact that police
       cannot deliver what they promise in the inducement and,
       therefore, waiver of a right based upon a false promise cannot
       be fairly accepted as a knowing and voluntary waiver.

Morgan, 606 A.2d at 469 (emphasis in original).

       Unlike Morgan, here there is no specific offer or promise of any kind,

let alone one of lenient treatment in return for Appellant’s cooperation (i.e.,

confession) in the investigation.          Additionally, there is no evidence the

statement was meant to overcome any resistance by Appellant to waive any

____________________________________________


6
  Morgan extended the Gibbs rationale “to apply not only to situations in
which a defendant is persuaded to forgo his right to counsel, but also to
those cases in which the promise of favorable treatment by the district
attorney is used to induce a defendant to waive his right against self-
incrimination.” Laatsch, 661 A.2d at 1367.




                                           -9-
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rights. Twice Appellant confessed his crimes despite the fact he was warned

twice of his rights. As such, Morgan is inapposite.

      Appellant next argues that the close relationship between Agent Miller

and Appellant and the fact Agent Miller kept his past promises to secure two

one-year extensions of his immigration status and paid him over $20,000 for

his   undercover    work   “in   exchange   for    his   cooperation[,]”   poisoned

Appellant’s waiver of his right against self-incrimination. Appellant’s Brief at

20. We disagree.

      While the promises Agent Miller made and benefits Appellants received

in the past were clear and definite, the same cannot be said about the

instant statement made by Agent Miller.           A promise that “you should be

okay” if he answered the investigators’ questions is not a promise of benefits

or special considerations so as to mislead Appellant into waiving his right to

self-incrimination. Agent Miller asked Appellant to work undercover for the

Department of Homeland Security for the purpose of providing him with

information   about    a   criminal   enterprise    being   investigated   by   the

Department.        In return, Agent Miller secured two extensions of his

immigration status, and paid him $20,000. The promise here did not carry

any tangible benefit and was not conditioned on relinquishing anything.

      Appellant also emphasizes the relationship between Appellant and

Agent Miller was one of trust. While there is evidence of frequent contacts

between the two, there is no indication the contacts were anything more

than a business relationship between them.          N.T. Suppression, 4/1/13, at

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33.      Appellant agreed to gather and relay information about a criminal

organization, and Agent Miller paid Appellant or otherwise gave him benefits

for his work as an informant: nothing more than a business relation

relationship; nothing different from other arrangements investigators have

with confidential informants. Id. at 34.

         Moreover, looking at the context in which the statement was made,

the record shows that Agent Miller made the statement after Appellant

confessed to the killings, while still in the process of taking basic

biographical information from Appellant, despite the fact Agent Miller warned

Appellant of his rights, and long before the detectives read his Miranda

warnings.      At the time the detectives read his Miranda warnings, the

detectives did not make promises of benefits or special considerations, did

not misrepresent his rights, and asked specific questions about his

understanding and waiver of those rights. There is no indication Appellant

did not understand his rights or that he placed any importance on Agent

Miller’s earlier statement.7      Specifically, the trial court found the following

facts:
____________________________________________


7
    To this end, the trial court noted:

         Appellant had plenty of opportunities to confirm Agent Miller’s
         statements with Detective Bradbury during his interview, but he
         did not. He also did not ask to have Agent Miller present during
         his interrogation, and in fact made no mention of Agent Miller
         throughout the entire time he spent with the Montgomery
         County Detectives.
(Footnote Continued Next Page)


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J-A17031-14



             [Appellant] was brought into custody around 11:00 a.m.
      and his actual interrogation by the Montgomery County
      [d]etectives began at 2:39 p.m. the same day. Prior to the
      interview, [Appellant] signed an acknowledgment that Detective
      Bradbury read his Miranda rights. He appeared to be in good
      health, not wanting for anything, had no visible injuries, and
      appeared to be a little cold but had been provided with a
      blanket.      The question-answer concluded at 5:06 p.m.
      [Appellant] initialed his answers, signed the end of the
      document, and was asked if there was anything else that he
      wished to discuss. [Appellant] never once made any reference
      to his conversation with Agent Miller.
             The videotape confession commenced at 6:04 p.m. and
      ended at 6:32 p.m. Thus, [Appellant] had been in custody for a
      little over seven hours. The court took this into consideration,
      however, [it] found that the duration was not overly long, and
      the nature of the interrogation does not indicate that [Appellant]
      was subjected to any duress, physical threats, or an
      environment in which his will was overborne by the detectives.
      Furthermore, the court found that [Appellant] appeared to be
      very calm, direct, and aware of what he was doing during his
      videotaped confession.
             Additionally, the court considered Detective Brandbury’s
      attitude from videotape and from the written questions he asked
      [Appellant]. They appeared to be just two people interacting in
      a respectful manner. There was nothing present to indicate that
      [Appellant] was drained of his ability to withstand suggestion
      and coercion.

Trial Court Opinion, 10/16/13, at 9-11 (footnote omitted).




                       _______________________
(Footnote Continued)


Trial Court Opinion, 10/16/13, at 11. We also note that in the written
portion of Appellant’s confession, Appellant did not indicate that he had been
promised anything in exchange for his confession.           N.T. Suppression,
4/2/13, at 96.




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J-A17031-14


       We agree with the trial court’s analysis and conclusions.8 Considering

the totality of the circumstances surrounding the assertion of the waiver, 9

there is no indication the waiver was involuntary. Accordingly, we discern

no basis to reverse the trial court’s determination that Appellant voluntarily

waived his right against self-incrimination.

       Judgment of sentence affirmed.




____________________________________________


8
  Appellant takes also issue with the trial court considering and believing the
benign explanation provided by Agent Miller for the statement at issue here
(i.e., to calm the situation), arguing the trial court should have instead
considered the impact of the statement on Appellant, citing Williams,
Levanduski, and DiStefano. We agree that promises of benefits or special
considerations—which were not made here—“however benign in intent,
comprise the sort of persuasion and trickery which easily can mislead
suspects into giving confessions.” Gibbs, 553 A.2d at 411. Under the
totality of the circumstances, as recounted above, however, the statement
did not rise to the level of impermissible inducement. We also note the
proposition for which Appellant cited the cases noted above is of no help
under the circumstances because they pertain to the standard for
determining whether a defendant is in custody at the time of making
statements, which is not contested here.
9
   In determining whether a defendant’s waiver of Miranda rights is
voluntary, “the focus is upon police conduct and whether a knowing,
intelligent, and voluntary waiver was effected based on a totality of the
circumstances [.]” Commonwealth v. Sepulveda, 55 A.3d 1108, 1137
(Pa. 2012).




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J-A17031-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2014




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