J. S61003/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
ROBIN HICKMAN,                         :          No. 448 WDA 2013
                                       :
                       Appellant       :


        Appeal from the Judgment of Sentence, February 11, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0010825-2011


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 29, 2014

     Robin Hickman appeals from the judgment of sentence of February 11,

2013, following his conviction of one count each of third degree murder,

criminal conspiracy, firearms not to be carried without a license, and

possession of a firearm by a minor. We affirm.

                 This matter arises out of the shooting death of
           David Spahr on November 15, 2010.                  The
           Commonwealth established that the victim was
           found shot to death while seated in the driver’s seat
           of his vehicle on Bortz [W]ay in Swissvale,
           Pennsylvania. The victim had been shot at close
           range. One bullet had entered the left side of his
           face and lodged in his right mandible. (T., p. 93) A
           second bullet entered the left chest and passed
           through various organs, including the aorta, and was
           recovered from the muscles of the right side of his
           body. (T., p. 96) Ballistic analysis later established
           that the bullet taken out of Spahr’s right mandible at
           autopsy had been fired by a .357 Taurus revolver.
           The Taurus revolver had been recovered by police


* Retired Senior Judge assigned to the Superior Court.
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             during an investigation into a subsequent unrelated
             homicide of Charles Wooding which occurred in
             March of 2011, also in Swissvale. (T., p. 63) During
             that investigation, Defendant was questioned by
             police and he ultimately led police to the Taurus
             revolver which was found where it had been thrown
             into some weeds along a set of steps near the
             location of the Wooding shooting.        (T., p. 64)
             Allegheny County ballistic experts matched the bullet
             taken from Spahr’s body with the gun that had been
             used in the Wooding shooting. In addition, the
             Commonwealth established that a fingerprint found
             on the exterior passenger’s side door of Spahr’s
             vehicle matched the right little finger print of
             Defendant. (T., pp. 110-115)

                   The Commonwealth also offered at trial
             Defendant’s confession which he made at the time of
             his arrest on July 28, 2011. Defendant was given his
             Miranda[1] rights at police headquarters. (T., pp.
             123-126) In his confession, Defendant stated that
             on the day of the shooting he returned from work to
             his apartment and met with another individual,
             Hashim Rashad. (T., p. 131) Rashad told Defendant
             that he was having problems with Spahr over
             money. (T., p. 132) Rashad then asked Defendant
             to go with him to a meeting with Spahr at which time
             Rashad wanted Defendant to shoot Spahr. Rashad
             explained that he wanted Defendant to shoot Spahr
             because Spahr knew where Rashad’s mother worked
             and his family lived. (T. p. 132) Rashad then told
             Defendant to bring his gun, which Defendant then
             got from his apartment. Rashad and Defendant then
             proceeded to meet Spahr. Rashad told Defendant
             that they were going to get into the [sic] Spahr’s
             vehicle truck [sic] and then Defendant was to shoot
             him. (T., p. 133) Defendant then recounted they
             met the [sic] Spahr and got into his vehicle, with
             Defendant sitting in the middle of the bench seat and
             Rashad on the far right near the passenger side
             door. (T., p. 133) However, they drove a short
             distance and ended up in an alleyway, where

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


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          Defendant and Rashad exited the vehicle. At that
          time Rashad yelled at Defendant for not shooting the
          victim when they first got in the truck. (T., p. 134)
          Defendant and Rashad then return[ed] to the vehicle
          at which point Defendant walked up to the vehicle
          and fired one shot and then turned and ran. (T., p.
          134) Defendant testified that as he was running he
          heard additional shots being fired and he continued
          running to his apartment where he hid the gun. (T.,
          p. 134)

                At trial, Defendant testified in his defense and
          recanted the confession, alleging that he was
          coerced into making it. Defendant testified that he
          was introduced to Spahr in November 2010 by
          another drug user known to him as Queenie. (T., p.
          189) Queenie told Defendant that Spahr was looking
          for drugs and then, accompanied by Queenie,
          Defendant met Spahr on a nearby street where
          Spahr arrived in his vehicle. Defendant testified that
          Spahr:

               “. . . pulled up, she hopped in the car
               with him to do the transaction, and I’m
               standing on the passenger’s side. We
               exchanged numbers, and he tells me to
               call him again anytime I have something
               good, he will spend some more money.”
               (T., pp. 190-191)

          Defendant testified that several days later, he texted
          Spahr again about meeting to buy drugs and
          ultimately met Spahr in McKeesport, a day or two
          before the [sic] Spahr was murdered. (T., p. 193)
          Defendant testified that after the meeting in
          McKeesport, he never saw Spahr again but that he
          did attempt to text him on November 15 and 16, but
          never got a response. (T., p. 194)

                 While Defendant denied shooting Spahr,
          Defendant admitted that he later came into
          possession of the Taurus revolver used in the Spahr
          killing, but not until four months after Spahr was
          killed. (T., p. 195) Defendant testified that on


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          March 15, 2011 he met Charles Wooding who told
          Defendant that he had a gun for sale at a low price.
          Defendant and Wooding exchanged phone numbers
          and planned on meeting later that day for Defendant
          to buy the gun. Wooding and Defendant met later in
          the day on Westmoreland Avenue in Swissvale in
          front of an apartment building. Wooding then asked
          Defendant to go inside to exchange the money for
          the gun. Defendant testified:

               “. . . once we go inside, we are on the
               second landing. I give him the money
               for the gun.     He gives me the gun.
               When he’s talking to me, he steps down
               from the landing with his back turned.
               When he turns around, pulls out a
               handgun.      He tells me give it up,
               meaning give me everything I got.
               When he did this, I was in shock. I
               couldn’t believe it. I stepped back and
               he cocks the gun back, meaning putting
               a bullet in the chamber, asks me do I
               think he’s playing. I panic, I believe if I
               didn’t pull the trigger to the revolver, I
               would have died that day.” (T., pp. 195-
               196)

          Defendant testified that after he shot Wooding he
          ran out of the building, through an alleyway and left
          by a set of steps where he threw the gun. (T., p.
          196)     Defendant admitted that he was later
          questioned by detectives about two weeks later
          concerning the incident. Defendant testified that he
          told the detectives that he had shot Wooding in
          self-defense and later took detectives to find the
          Taurus revolver. (T., p. 197) Defendant denied any
          involvement in the killing of David Spahr.

               Regarding his confession, Defendant testified
          that when he was taken into custody on July 28,
          2011 he denied being involved in Spahr’s murder
          and asked the arresting detectives to call his mother
          so he could get a lawyer. Defendant testified that
          the detectives left the room and later returned


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            saying that they didn’t have to call his mother. (T.,
            p. 201)      One of the detectives then allegedly
            grabbed the back of his neck and told him if he ever
            wanted to get out again he needed to sign the
            waiver of rights form presented to him. Defendant
            testified that he signed the form because he didn’t
            believe he had a choice.          (T., pp. 201-202)
            Defendant testified that despite repeatedly telling the
            police he was not involved in the killing, “they got
            frustrated and on their way out -- they want to leave
            the interrogation, and on the way out the detectives
            pushed me onto the floor.” (T., p. 202) Defendant
            testified that he was scared and “I would’ve said
            anything to get out of that room.” (T., p. 202)

                   Defendant also presented the testimony of his
            father, Robin Hickman, Sr. who testified concerning
            his attempts to speak to his son when he had arrived
            at the police station on the day Defendant was
            arrested. Mr. Hickman testified that he questioned
            the officers and they told him they would be right
            back to talk to him about his son but he then saw
            them leaving and he was never given the
            opportunity to speak to his son. (T., p. 228)

                  After being appropriately charged and during
            its deliberations, the jury requested that the taped
            confession be replayed.       In addition, the jury
            requested additional instructions on first degree and
            third degree murder and conspiracy. (T., p. 228)
            The jury was reinstructed and the tape of the
            confession     was    played.      After    additional
            deliberations, Defendant was then found guilty as
            noted above.

Trial court opinion, 1/21/14 at 2-6.

      On February 11, 2013, appellant was sentenced to 20 to 40 years’

incarceration for third degree murder, a concurrent sentence of 20 to

40 years for criminal conspiracy, and a consecutive sentence of 2 to 4 years

for carrying a firearm without a license. No sentence was imposed on the


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charge of possession of a firearm by a minor.           Therefore, appellant’s

aggregate sentence was 22 to 44 years’ imprisonment.         New counsel was

appointed, and a timely notice of appeal was filed on March 12, 2013. On

March 19, 2013, appellant was ordered to file a concise statement of errors

complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),

42 Pa.C.S.A.; appellant complied on July 1, 2013.2      On January 21, 2014,

the trial court filed a Rule 1925(a) opinion.

      Appellant has raised the following issues for this court’s review:

            I.     Did the trial court abuse its discretion in
                   denying the motion to suppress [appellant]’s
                   statement to the police insofar as he did not
                   knowingly and voluntarily waive his Miranda
                   rights?

            II.    Did the trial court err in allowing the taped
                   statement of [appellant] to be re-played to the
                   jury at the jury’s request after it had begun to
                   deliberate resulting in undue emphasis being
                   placed on this evidence, which prejudiced
                   [appellant]?

            III.   Did the trial court err in ruling that the fact
                   that alleged co-conspirator, Hashim Rashad,
                   confessed to the crime, was inadmissible
                   evidence?




2
   While it appears that appellant’s Rule 1925(b) statement was untimely
filed, because the trial court accepted the late statement and addressed
appellant’s substantive issues, we will not find waiver. Commonwealth v.
Rodriguez, 81 A.3d 103, 105 n.2 (Pa.Super. 2013), appeal denied, 91
A.3d 1238 (Pa. 2014); Commonwealth v. Burton, 973 A.2d 428, 433
(Pa.Super. 2009) (en banc).


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Appellant’s brief at 4 (capitalization omitted).3

      In his first issue on appeal, appellant argues that the trial court erred

by failing to suppress his statement to police. Appellant argues that he was

a juvenile at the time of his arrest, was not permitted to call his parents or

speak with a lawyer, and his confession was involuntary.

                  In reviewing the denial of a motion to
                  suppress,     our  responsibility is   to
                  determine whether the record supports
                  the suppression court’s factual findings
                  and the legitimacy of the inferences and
                  legal conclusions drawn from those
                  findings. If the suppression court held
                  for the prosecution, we consider only the
                  evidence of the prosecution’s witnesses
                  and so much of the evidence for the
                  defense as, fairly read in the context of
                  the record as a whole, remains
                  uncontradicted.      When the factual
                  findings of the suppression court are
                  supported by the evidence, the appellate
                  court may reverse if there is an error in
                  the legal conclusions drawn from those
                  factual findings.



3
    An additional issue raised in appellant’s Rule 1925(b) statement,
challenging the discretionary aspects of sentencing, has been abandoned on
appeal. In addition, any such claim would be waived as appellant failed to
raise it at sentencing or in a post-sentence motion. See Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa.Super. 2007), appeal denied, 936 A.2d
40 (Pa. 2007) (“an appellant can seek to appeal discretionary sentencing
issues only after preserving them during the sentencing hearing or in
post-sentence motions”), citing Commonwealth v. Malovich, 903 A.2d
1247, 1250 (Pa.Super. 2006); Commonwealth v. Hyland, 875 A.2d 1175,
1183 (Pa.Super. 2005), appeal denied, 890 A.2d 1057 (Pa. 2005)
(“Objections to the discretionary aspects of a sentence are generally waived
if they are not raised at the sentencing hearing or raised in a motion to
modify the sentence imposed at that hearing.”) (citations omitted).


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           Commonwealth v. Lopez, 415 Pa.Super. 252, 609
           A.2d 177, 178-79 (1992) (citation omitted).

                       A confession obtained during a
                 custodial interrogation is admissible
                 where the accused’s right to remain
                 silent and right to counsel have been
                 explained and the accused has knowingly
                 and voluntarily waived those rights. The
                 test for determining the voluntariness of
                 a confession and whether an accused
                 knowingly waived his or her rights looks
                 to the totality of the circumstances
                 surrounding the giving of the confession.

           Commonwealth v. Jones, 546 Pa. 161, 170, 683
           A.2d 1181, 1189 (1996) (citations omitted). ‘The
           Commonwealth bears the burden of establishing
           whether a defendant knowingly and voluntarily
           waived his Miranda ‘rights.’ Commonwealth v.
           Bronshtein, 547 Pa. 460, 464, 691 A.2d 907, 913
           (1997) (citation omitted).

Commonwealth v. Davis, 861 A.2d 310, 317 (Pa.Super. 2004), appeal

denied, 872 A.2d 171 (Pa. 2005).

           When deciding a motion to suppress a confession,
           the touchstone inquiry is whether the confession was
           voluntary.   Voluntariness is determined from the
           totality of the circumstances surrounding the
           confession. The question of voluntariness is not
           whether the defendant would have confessed without
           interrogation, but whether the interrogation was so
           manipulative or coercive that it deprived the
           defendant of his ability to make a free and
           unconstrained     decision   to   confess.       The
           Commonwealth has the burden of proving by a
           preponderance of the evidence that the defendant
           confessed voluntarily.

Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (citations and

footnote omitted).


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            When assessing voluntariness pursuant to the
            totality of the circumstances, a court should look at
            the following factors: the duration and means of the
            interrogation; the physical and psychological state of
            the accused; the conditions attendant to the
            detention; the attitude of the interrogator; and any
            and all other factors that could drain a person’s
            ability to withstand suggestion and coercion.

Id. (citations omitted).     “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), citing Nester,

supra.

     “A determination of whether a juvenile knowingly waived his Miranda

rights and made a voluntary confession is to be based on a consideration of

the totality of the circumstances, including a consideration of the juvenile's

age, experience, comprehension and the presence or absence of an

interested adult.” In re T.B., 11 A.3d 500, 506 (Pa.Super. 2010), appeal

denied, 24 A.3d 864 (Pa. 2011), quoting In Interest of N.L., 711 A.2d

518, 520 (Pa.Super. 1998). “[T]he per se requirement of the presence of

an interested adult during a police interview of a juvenile is no longer

required.    Nevertheless,    it   remains   one   factor   in   determining   the

voluntariness of a juvenile's waiver of his Miranda rights.”         Id. at 507,

citing Commonwealth v. Williams, 475 A.2d 1283 (Pa. 1984).

      Instantly, appellant was only three days shy of his 18th birthday.

Although technically still a juvenile, he was almost an adult.           He was

experienced in the criminal justice system and had a prior record. In fact,


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he had been questioned in another, unrelated homicide just a few months

earlier, in March 2011. There was no evidence that appellant suffered from

any mental incapacity or psychological condition which would affect his

ability to understand his rights. Appellant was advised of his Miranda rights

and executed a waiver of rights form. Although an interested adult was not

present, Detective Patrick Kinavey testified that appellant never asked to

speak with his parents or a lawyer. The trial court found Detective Kinavey’s

testimony to be credible, and rejected appellant’s testimony that he was

physically and verbally threatened and intimidated.      (Trial court opinion,

1/21/14 at 10.)    We find appellant knowingly and intelligently waived his

Miranda rights and gave a voluntary confession. The trial court did not err

in denying appellant’s suppression motion.

       Next, appellant argues that the trial court erred in allowing the

audiotape of his confession to be re-played for the jury during their

deliberations.   According to appellant, this placed undue emphasis on his

statement to police and de-emphasized his trial testimony in which he

denied any involvement in the shooting.        (Appellant’s brief at 32-33.)

Appellant argues that the trial had proceeded quickly and the testimony was

fresh in the minds of the jurors, making the re-playing unnecessary. (Id. at

32.)

       “When a jury requests that recorded testimony be read to it to refresh

its memory, it rests within the trial court’s discretion to grant or deny such



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request. Furthermore, so long as there is not a flagrant abuse of discretion,

this decision should not be overturned on appeal.”      Commonwealth v.

Gladden, 665 A.2d 1201, 1205 (Pa.Super. 1995) (en banc), appeal

denied, 675 A.2d 1243 (Pa. 1996) (citations omitted).

           Generally, the determination whether to grant a
           request from jurors for a reading of a portion of the
           trial testimony during deliberations for the purpose
           of refreshing its recollection rests within the
           discretion of the trial court. The reading of the
           testimony does not implicate reversible error,
           provided that it does not place undue emphasis on
           one witness's testimony.

Commonwealth v. Johnson, 838 A.2d 663, 677 (Pa. 2003), citing

Commonwealth v. Peterman, 244 A.2d 723, 726 (Pa. 1968).

     We find no abuse of discretion in granting the jury’s request to hear

appellant’s taped confession again.    First, we observe that this did not

violate Pa.R.Crim.P. 646(C)(2), which prohibits the jury from having a copy

of any written or otherwise recorded confession by the defendant during

their deliberations. Appellant’s confession was re-played in open court; the

tape was not allowed to go back with the jury into the jury room. (Notes of

testimony, 11/8-15/12 at 297.) In addition, appellant made his confession

an issue when he testified that it was coerced and involuntary.     There is

nothing to support appellant’s contention that at the time the jury asked to

hear the taped confession again, they had already made up their minds that

appellant made the statement voluntarily.    (Appellant’s brief at 33.)   We

note that the jury found appellant not guilty of first-degree murder.     The


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trial court did not abuse its discretion in allowing appellant’s taped statement

to be re-played for the jury to refresh their recollection.     See Gladden,

supra (no error in allowing police detective’s testimony to be re-read to the

jury to refresh their memory, which included testimony regarding the

defendant’s statement to police).

      In his third and final issue on appeal, appellant contends that the trial

court erred in disallowing evidence of his co-conspirator, Hashim Rashad’s

statement to police.       According to appellant, Rashad’s statement was

admissible as a statement against penal interest under Pa.R.E. 804(b)(3).

      At trial, during his opening statement, defense counsel remarked:

               There are certain things in this case that do not
               make     sense.      Ms.  Pellegrini  brought   up
               Hashim Rashad. As the testimony comes out, we
               are going to hear that someone else in fact
               confessed to this crime. So, ladies and gentlemen,
               don’t --

               MS. PELLEGRINI: I need to make an objection.

Notes of testimony, 11/8-15/12 at 26-27.         During the ensuing sidebar,

defense counsel remarked only that, “Well, at some point I am going to have

to ask the detective if someone else confessed to the crime.” (Id. at 27.)

The trial court then instructed the jury to disregard counsel’s last statement.

(Id. at 28.)

      Later, during cross-examination of Detective Kinavey, defense counsel

asked him whether or not he had questioned Rashad:




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            A.    Hashim Rashad was already in custody.

            Q.    So you knew where he was? You have been
                  down to the Allegheny County Jail before?

            MS. PELLEGRINI: Objection.

            MR. ABRAMOVITZ: May we approach?

            (Whereupon, a sidebar conference was held as
            follows:)

            MS. PELLEGRINI: I’m going to object. This is a
            completely improper line of cross-examination. He is
            attempting to elicit information regarding the
            co-defendant, his statement, whether he was
            interviewed. It is not relevant, it is hearsay, it is
            completely improper. It is the same objection that I
            made during his opening.

            MR. ABRAMOVITZ: It is part of the investigation,
            and it can tend to prove or disprove the essential
            elements of the charge.

            THE COURT: Objection sustained. You can’t go into
            it.

            MR. ABRAMOVITZ: I will move on.

            (Whereupon, the sidebar conference concluded.)

Id. at 150-151.

      Appellant never argued at trial that Rashad’s statement to police was

admissible as a statement against penal interest. He is raising that issue for

the first time on appeal.   As the trial court states, he never offered any

portion of Rashad’s statement to evaluate whether or not any particular

exception to the rule against hearsay applied. (Trial court opinion, 1/21/14

at 14.) Nor did he establish that Rashad was unavailable as a witness, and


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that his statement is supported by corroborating circumstances that clearly

indicate its trustworthiness as required by Rule 804(b)(3).    As such, the

issue is deemed waived. Pa.R.A.P. 302(a); Commonwealth v. Fink, 791

A.2d 1235, 1248 (Pa.Super. 2002) (citations omitted).

     Furthermore, appellant cannot demonstrate how he was prejudiced by

the trial court’s ruling where there is no indication that Rashad’s statement

was exculpatory. Appellant did not file a pre-trial motion in limine to admit

Rashad’s statement into evidence, nor does it appear in the record.

Appellant never made an offer of proof or established what Rashad told

police about the shooting. As such, the contents of Rashad’s statement are

unknown. This claim fails.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




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