J-S11001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SHILEE DIXSON,

                        Appellant                   No. 234 WDA 2015


        Appeal from the Judgment of Sentence of January 12, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0008633-2011


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

MEMORANDUM BY OLSON, J.:                               FILED JUNE 9, 2017


     Appellant, Shilee Dixson, appeals from the judgment of sentence

entered on January 12, 2015 in the Criminal Division of the Court of

Common Pleas of Allegheny County. We affirm.

     Following a nonjury trial held on September 29 and 30, 2014, the

court found Appellant guilty of second-degree murder (count one; 18

Pa.C.S.A. § 2502(b)), one count of robbery – inflict serious bodily injury

(count two; 18 Pa.C.S.A. § 3701(a)(1)(i)), one count of criminal conspiracy

(count three; 18 Pa.C.S.A.     § 903(c)), and one count of possession of

firearm by a minor (count four; 18 Pa.C.S.A. § 6110.1(a)). On January 12,

2015, the court sentenced Appellant at count one to 30 to 60 years of

incarceration; at count two to a concurrent sentence of five to ten years’



*Former Justice specially assigned to the Superior Court.
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incarceration; at count three to a concurrent sentence of three to six years’

incarceration; and no further penalty at count four.

        The issues in this appeal arise from the following facts, which the trial

court aptly summarized.

        This matter arises out of the shooting death of Malachi Urbini on
        May 8, 2011 while he was being robbed of his I-Pad in an alley in
        McKees Rocks, [Pennsylvania]. During the robbery[,] Urbini was
        shot three times, twice in the back and once in the abdomen.
        One of the bullets that entered his back pierced his heart
        resulting in his death. Based on the investigation conducted by
        Allegheny County homicide detectives, [Appellant] was identified
        as the shooter and a warrant was issued for his arrest. After his
        arrest[,] [Appellant] gave a confession admitting to his
        involvement in the shooting. Prior to trial[, Appellant moved to
        suppress] his confession on the basis that he was under the age
        of 18 at the time of the confession, that he was not permitted to
        speak to his parents or [another] interested adult before waiving
        his Miranda[1] rights[,] and that he did not knowingly and
        voluntarily waive his right to remain silent.

        A suppression hearing was held on September 9 and 10, 2014 at
        which the Commonwealth presented the testimony of Detective
        Patrick Kinavey who testified that[,] on May 10, 2011[,] he and
        his partner went to [Appellant’s] house to arrest him having
        obtained a warrant for his arrest for Urbini’s murder.
        [Appellant’s] mother informed the detectives that [Appellant]
        was not home[. She then called Appellant] and determined that
        he was at [a] T-Station in [downtown] Pittsburgh. [Appellant]
        agreed to wait for the detectives to pick him up. His mother
        described what he was wearing and indicated that he would be
        waiting outside the T-Station. Approximately 15 minutes later,
        at 10:45 a.m.[,] the detectives located [Appellant] and, after
        advising him that they had a warrant for his arrest for criminal
        homicide, he was handcuffed and transported to the detectives’
        headquarters. After a 10-15 [minute] ride to headquarters,
        [Appellant] was taken to an interview room and shackled to the
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 478 (1966).



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     floor. The interview room is approximately 8 feet by 10 feet with
     one window. [Appellant] was left alone for approximately 30-45
     minutes. When initially interviewing [Appellant], the detectives
     knew that [Appellant] was only three days shy of his 18 th
     birthday. [Appellant] was presented with a Rights Warning
     Waiver Form which set forth his Miranda rights which
     [Appellant] read and initialed indicating that he understood his
     rights and that he was willing to speak to the detectives.
     Detective Kinavey indicated that [Appellant] told them that [he]
     had two children, [one] age four and [the other eight] months,
     and that he was in the process of completing the twelfth grade.
     Detective Kinavey testified that [Appellant] did not appear to
     exhibit any confusion or inability to understand why he was []
     taken into custody or the content of the waiver form that was
     presented to him. Detective Kinavey testified that no promises
     were made to [Appellant] nor was he threatened in anyway.
     Detective Kinavey testified that from the time they spoke with
     [Appellant’s] mother until the time that they picked [Appellant]
     up and started the interview process it was approximately an
     hour and forty-five minutes. Detective Kinavey testified that
     [Appellant] did not ask for an attorney, never asked that the
     questioning be stopped[,] and never asked to speak to a parent
     or adult about waiving his rights or to be present during the
     interview. In addition, there was no [indication] that [Appellant]
     had any type of diminished capacity or any type of health
     problems. After the initial questioning, [Appellant] indicated that
     he was willing to give a recorded statement at which time he
     was transferred to another room and a recorded statement was
     taken beginning at 2:06 p.m. During the statement, which was
     played at the suppression hearing, [Appellant] stated that he
     had [spoken] with Taivon Cunningham on May 7, 2011, who had
     previously sold heroin to the victim in exchange for an I-Pod,
     and that Cunningham told [Appellant] that the victim then
     wanted to exchange his I-Pad for some more heroin.
     Cunningham then gave [Appellant] a handgun and told him to
     meet the victim in the nearby alley and rob him. [Appellant]
     took the gun and proceeded to the alleyway[. When Appellant
     pulled the gun out, the victim grabbed it.          At that point,
     Appellant’s] finger slid across the trigger and the gun went off[,
     striking] the victim. [Appellant] then returned to Cunningham’s
     apartment leaving the I-Pad and the gun[. The following day,
     however, Appellant] retrieved the gun and initially hid it but then
     gave it to a relative. [Appellant] stated that he did not intend to
     shoot the victim, thinking that the safety was on, but the gun

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      discharged when the victim grabbed at [it]. During the recorded
      statement, [Appellant] did not sound confused or distressed.
      Detective Kinavey also testified that [Appellant] consented to
      give a buccal swap and consented to a search of his phone and
      that he executed a form evidencing his consent.

      On cross[-]examination Detective Kinavey testified that
      [Appellant] did not ask for an opportunity to speak with his
      parents. In addition, although Detective Kinavey did not know
      that [Appellant’s] father had come to the headquarters, he would
      not have allowed [Appellant] to speak with him in any event
      because [Appellant] was so close to the age of 18 and he was in
      custody pursuant to the arrest warrant.         Detective Kinavey
      further testified that based on [Appellant’s] age and the other
      background information that they had concerning him and, after
      consulting with the district attorney’s office, it was determined
      that [Appellant] could be interviewed alone.

      During the suppression hearing, [the parties] stipulated that
      [Appellant] had one prior involvement in the juvenile system
      related to a theft but there was no evidence that [Appellant] had
      [received Miranda warnings] at the time of that incident.
      [Appellant] presented the testimony of his father, Donnie Lee,
      who testified that upon being made aware that his son was being
      arrested he proceeded to the police station and asked to speak
      to his son. He testified that he was never allowed to see his son
      and only spoke to him as he was being led from the police
      station.

      An order was entered on September 15, 2014 denying the
      motion to suppress[. The trial court found that,] under the
      totality of the circumstances[, Appellant] knowingly and
      voluntarily waived his Miranda rights. After a nonjury trial held
      on September 29 and 30, 2014, during which [Appellant’s]
      confession was admitted into evidence, [Appellant] was found
      guilty as set forth above[.]

Trial Court Opinion, 6/20/16, at 1-5.

      Appellant filed a timely notice of appeal on February 9, 2015.

Thereafter, on February 10, 2015, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to PA.R.A.P.

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1925(b).     After the trial court extended the filing deadline, Appellant

preserved the issues he now raises on appeal by including them in his

concise statement filed on January 19, 2016.


      Appellant lists two claims for our consideration:

           I.    Did the trial court abuse its discretion in denying
           [Appellant’s] motion to suppress on the grounds that
           [Appellant] did not knowingly, intelligently and voluntarily
           waive his Miranda rights or voluntarily give an
           inculpatory statement to the police?

           II. Did the trial court err in denying [Appellant’s] motion
           to suppress on the grounds that [Appellant] did not
           knowingly, intelligently and voluntarily consent to the
           search of his cell phone?

Appellant’s Brief at 4 (complete capitalization omitted).

      Appellant asserts that the trial court erred in denying his pretrial

motion to suppress evidence. We apply the following standard and scope of

review to such challenges.

      Our standard of review of an order denying a motion to suppress
      evidence is limited to determining whether the findings of fact
      are supported by the record and whether the legal conclusions
      drawn from those facts are in error.          Commonwealth v.
      Crompton 682 A.2d 286 (Pa. 1996); Commonwealth v.
      Chambers 598 A.2d 539 (Pa. 1991).                 In making this
      determination, this [C]ourt may only consider the evidence of
      the Commonwealth's witnesses, and so much of the witnesses
      for the defendant, as fairly read in the context of the record as a
      whole, which remains uncontradicted. Id. If the evidence
      supports the findings of the trial court, we are bound by such
      findings and may reverse only if the legal conclusions drawn
      therefrom are erroneous. Id.




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Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa. Super. 2015),

quoting Commonwealth v. Jones, 758 A.2d 228, 229 (Pa. Super. 2000).

       Appellant’s position is that the evidence adduced at his suppression

hearing,    even    when      viewed     in    the   light   most   favorable   to   the

Commonwealth, fails to show that he knowingly, intelligently, and voluntarily

waived his right to the presence of a parent and/or counsel or that he

knowingly and intelligently gave incriminating statements in response to

police interrogation.2 Appellant identifies several circumstances surrounding

his interrogation to support his claims. Specifically, Appellant notes that, as

a juvenile, he was: (1) placed in an interrogation room and shackled to the

floor; (2) asked to sign a waiver of his rights less than an hour after police

placed him in custody; (3) never told he could have a parent or other

interested adult present during the interrogation; and, (4) subjected to

police custody for almost three hours before making a taped statement.

Appellant’s Brief at 24.       Appellant also alleges that the police prevented

contact with his father at the police station, that he had only one prior

contact with the juvenile adjudication system and no prior contact with the

adult criminal justice system, and that he never had Miranda rights
____________________________________________


2
  The argument section of Appellant’s brief does not address his second
claim alleging that the trial court erred in refusing to suppress information
obtained from his cellular telephone. Hence, we deem this issue to be
abandoned and waived. See Commonwealth v. Roche, 153 A.3d 1063,
1072 (Pa. Super. 2017) (failure to properly develop a claim in appellate brief
renders an issue waived).



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explained to him previously.       Id. at 25.     Under these circumstances,

Appellant concludes that the Commonwealth failed to prove a valid waiver of

Miranda rights by a preponderance of the evidence and that the trial court,

therefore, erred in refusing to suppress his statement to police.

      It is well settled that the police must administer Miranda warnings to

all individuals subjected to custodial interrogation.

      It is a fundamental precept of constitutional law that a suspect
      subject to a custodial interrogation by police must be warned
      that he has the right to remain silent, that anything he says may
      be used against him in court, and that he is entitled to the
      presence of an attorney. Miranda, 384 U.S. at 469. If an
      individual is not advised of those rights prior to a custodial
      interrogation, any evidence obtained through the interrogation is
      inadmissible at trial. In re K.Q.M., 873 A.2d 752, 755 (Pa.
      Super. 2005). The Miranda safeguards are triggered “whenever
      a person in custody is subjected to either express questioning or
      its functional equivalent.” Rhode Island v. Innis, 446 U.S.
      291, 292 (1980).

Freeman, 128 A.3d at 1240 (parallel citations omitted).

      In deciding whether a juvenile voluntarily, knowingly, and intelligently

waived his Miranda rights before giving an incriminating statement to

investigators, we consider the following principles.

      Regardless of whether a waiver of Miranda is voluntary, the
      Commonwealth must prove by a preponderance of the evidence
      that the waiver is also knowing and intelligent.

      Miranda holds that the juvenile may waive effectuation of the
      rights conveyed in the warnings provided the waiver is made
      voluntarily, knowingly and intelligently. The inquiry has two
      distinct dimensions. First, the relinquishment of the right must
      have been voluntary in the sense that it was the product of a
      free and deliberate choice rather than intimidation, coercion or
      deception. Second, the waiver must have been made with a full

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      awareness both of the nature of the right being abandoned and
      the consequences of the decision to abandon it. Only if the
      totality of the circumstances surrounding the interrogation
      reveals both an uncoerced choice and the requisite level of
      comprehension may a court properly conclude that Miranda
      rights have been waived.

      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 examining the totality of circumstances, we also
      consider: (1) the duration and means of an interrogation; (2)
      the defendant's physical and psychological state; (3) the
      conditions attendant to the detention; (4) the attitude of the
      interrogator; and (5) any and all other factors that could drain a
      person's ability to withstand suggestion and coercion.         We
      acknowledge that the 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.

In re V.C., 66 A.3d 341, 351 (Pa. Super. 2013) (citation and internal

quotation marks omitted), appeal denied, 80 A.3d 778 (Pa. 2013).

      The trial court offered the following rationale in determining that

Appellant voluntarily, knowingly, and intelligently waived his Miranda rights

before confessing to detectives.

      In this case, considering the totality of circumstances, it is clear
      that [Appellant] not only voluntarily, but knowingly and
      intelligently, waived his Miranda rights. In fact, other than the
      fact that [Appellant] was three days shy of his 18th birthday,
      there would be no evidence at all on which to base a claim that
      his Miranda rights were not voluntarily, knowingly, and
      intelligently waived. There is absolutely no evidence of any
      coercion or deception on the part of detectives in obtaining the
      waiver. The detectives spoke with [Appellant’s] mother who was
      advised that they had an arrest warrant for her son and she

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     voluntarily made arrangements for his arrest.                Shortly
     thereafter[, Appellant] was taken into custody, advised of why
     he [was arrested,] and was promptly transported to the
     detectives’ headquarters. Detective Kinavey testified that they
     arrested [Appellant] at approximately 10:45 a.m. and the
     [w]aiver [f]orm was signed at 12[:00] p.m.              During the
     approximate [one] hour and 15 minutes between his arrest and
     the execution of the [w]aiver [f]orm, [Appellant] was
     transported to headquarters and was left alone in the
     interrogation room for approximately 30 minutes. There is no
     evidence that he was coerced, threatened or subject to any
     intimidating actions or activity designed to affect his ability to
     make a voluntary waiver of his rights. The [w]aiver [f]orm
     clearly and explicitly advised him of his right to remain silent, his
     right to an attorney and the fact that he voluntarily consented to
     speak to the detectives. [Appellant] knowingly acknowledged
     these rights and voluntarily gave a recorded statement that was
     taken at approximately 2:06 p.m. and lasted for approximately
     [nine] minutes. Detective Kinavey indicated that [Appellant]
     was given some food and water and was given the opportunity
     to use the bathroom. Although he was shackled to the floor,
     which was standard procedure for a person in custody, there is
     absolutely no evidence to indicate that the duration and means
     of the interrogation was improper or was used to overcome
     [Appellant’s] ability to make a knowing and voluntary decision
     concerning the waiver of his rights. There is no evidence to
     show that there was anything about [Appellant’s] physical or
     psychological state that would affect his ability to make a
     knowing and intelligent waiver.       There is no evidence that
     Detective Kinavey intimidated or threatened [Appellant] or
     [conducted the interrogation in any other manner] designed to
     drain [Appellant’s] ability to withstand suggestion and coercion.
     Although [Appellant] was three days shy of his 18 th birthday, the
     evidence establishes that he was in the process of completing
     the 12th grade and there was no evidence of any diminished
     intellectual or emotional capacity. Listening to the recorded
     interview, [Appellant] did not express any confusion or
     misunderstanding regarding the questions being put to him nor
     did [he] express any doubt in his responses. [Appellant] used
     the opportunity to give a statement to explain that the gun
     discharged accidentally when the victim grabbed at [it] and that
     [Appellant] didn’t realize that the safety [mechanism was
     disengaged]. Although [Appellant’s] father was present at the
     headquarters and asked to see his son, there is no evidence that

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      [Appellant] asked to see one of his parents or another adult
      because he did not understand the process or the rights that he
      was waiving. Although the age of a minor may be one factor in
      determining the voluntariness of a juvenile’s waiver, there is no
      evidence to support the contention that [Appellant’s] age in this
      case had any influence on the waiver of his Miranda rights. The
      fact that Detective Kinavey acknowledged that even if he knew
      that [Appellant’s] father was present at the headquarters that he
      would not have allowed him to see his son does not, in and of
      itself, indicate either the use of coercion to obtain the waiver or
      that the waiver was not knowing, voluntary, and intelligent[.]

Trial Court Opinion, 6/20/16, at 6-8.

      We have carefully reviewed the transcript of Appellant’s suppression

hearing. Based upon our review, we conclude that the record supports the

trial court’s factual findings and that the court’s rulings are consistent with

pertinent   case   law.    Because      the   Commonwealth    proved,   by   a

preponderance of the evidence, that Appellant voluntarily, knowingly, and

intelligently waived his Miranda rights, we see no reason to disturb the trial

court’s admission of Appellant’s statement to detectives.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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