J-S30004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                              Appellee

                        v.

PEDRO JUNIOR RODRIGUEZ

                              Appellant                  No. 896 EDA 2015


             Appeal from the Judgment of Sentence March 3, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005244-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 15, 2016

        Appellant, Pedro Junior Rodriguez, appeals from the judgment of

sentence entered in the Lehigh County Court of Common Pleas, following his

jury trial conviction for third-degree murder.1 We affirm.

        The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we have no reason to restate them.

        Appellant raises the following issues for our review:

           DID THE TRIAL COURT ERR WHEN IT DENIED
           [APPELLANT’S]  PRETRIAL MOTION   TO  SUPPRESS
           STATEMENTS MADE BY [APPELLANT] TO THE POLICE
           WHILE UNDER INTERROGATION AND ALLOWED THEM TO
           BE ENTERED AS EVIDENCE?

           DID    THE        TRIAL   COURT     ERR   WHEN   IT   DENIED
____________________________________________


1
    18 Pa.C.S.A. § 2502(c).
J-S30004-16


           [APPELLANT’S] REQUEST  FOR  A  JURY  CHARGE
           INSTRUCTING THE JURY THAT PROOF OF “HEAT OF
           PASSION” COULD REDUCE THE CHARGE OF CRIMINAL
           HOMICIDE TO THE LESSER OFFENSE OF VOLUNTARY
           MANSLAUGHTER?

(Appellant’s Brief at 7).

      We review the denial of a suppression motion as follows:

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct.

           [W]e may consider only the evidence of the prosecution
           and so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011) (quoting

Commonwealth v. Galvin, 603 Pa. 625, 651, 985 A.2d 783, 798-99

(2009)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable William E.


                                      -2-
J-S30004-16


Ford, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively    discusses   and   properly   disposes   of   the   questions

presented. (See Trial Court Opinion, filed May 8, 2015, at 4-16) (finding:

(1) during police interview, detectives said nothing improper to Appellant

about his fiancée in light of information they had; detectives had evidence

that Appellant made four phone calls to his fiancée immediately after attack

on victim; shortly after those calls, Appellant and his fiancée drove for two

hours to Selinsgrove; detectives properly questioned Appellant in attempt to

determine respective involvement of Appellant and his fiancée in incident;

detectives confronted Appellant with his fiancée’s statement to police, which

incriminated Appellant and conflicted with Appellant’s initial version of

events and assertions of innocence; detectives did not say Appellant’s

fiancée would be prosecuted; rather, detectives said they would call district

attorney to discuss what charges, if any, should be brought against her

because they could not exclude her as person involved in attack on victim;

no evidence supports Appellant’s claim that police induced him to confess by

threatening to arrest his fiancée or any other family member; Appellant did

not testify at suppression hearing as to what prompted him to confess;

detectives’ challenged statements and questions to Appellant regarding his

fiancée could not reasonably be construed as coercive; (2) at trial, Appellant

testified that he believed victim had stolen items from Appellant and his

fiancée; Appellant went to victim’s apartment to confront him day before


                                     -3-
J-S30004-16


incident, but victim was not there; Appellant returned to victim’s apartment

on next day; Appellant said he was still upset but had “calmed down a lot”

since previous night; Appellant testified that during argument with victim,

victim quickly reached across his body with his right hand; victim was sitting

on sofa at that point; Appellant did not know what victim was reaching for;

Appellant claimed he panicked, pulled out knife, and began to slash victim;

Appellant said he then tried to defuse tension but victim charged him;

Appellant admitted he could see victim was not holding weapon; Appellant

slashed and stabbed victim with knife several more times; Appellant’s

testimony provided basis for jury instruction on “imperfect self-defense”

voluntary manslaughter; jury instruction on “heat of passion” voluntary

manslaughter, however, was not justified; victim’s repeated denial that he

stole   Appellant’s   property could   not constitute   adequate   provocation

necessary for “heat of passion” defense; further, Appellant did not testify

that victim’s agitated appearance or action of reaching across his body

caused Appellant to lose all composure or to enter intense emotional state

that obscured his reason; therefore, court properly denied Appellant’s

request for jury instruction on “heat of passion” voluntary manslaughter).

Accordingly, we affirm on the basis of the trial court opinion.

        Judgment of sentence affirmed.




                                       -4-
J-S30004-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




                          -5-
                                                                           Circulated 03/22/2016 01:45 PM




IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

                                  CRIMINAL DIVISION

COMMONWEALTH
OF PENNSYLVANIA
                                                       No.   CP-39-CR-5244-2013
       v.
PEDRO JUNIOR RODRIGUEZ,

               Defendant/ Appellant




APPEARANCES:

Michael T. Edwards, Deputy District Attorney,
       on behalf of the Commonwealth

Michael E. Brunnabend, Assistant Public Defender,
       on behalf of Defendant/ Appellant

                                      **********
WILLIAM E. FORD, JUDGE


                               Pa.R.A.P. 1925(a) OPINION

       A jury found defendant/appellant, Pedro Junior Rodriguez, guilty of third-degree

murder for stabbing Robert Brandon to death. I sentenced appellant for the murder to a

term of state confinement. Appellant timely filed the current notice of appeal to the

Superior Court of Pennsylvania. For the reasons that follow, appellant's two contentions

of error lack merit so this appeal should be denied.
                             Factual and Procedural History

       At approximately 7:30 a.m. on Sunday, November 3, 2013, officers of the

Allentown Police Department were dispatched to 25 South Eleventh Street in Allentown,

Pennsylvania, to respond to a report that a male was bleeding from his neck. The first

policeman to respond was Officer Christopher Hendricks. He found Robert Brandon, the

homicide victim in this case, still bleeding and lying in a pool of blood in the roadway of

South Eleventh Street.

       Officer Hendricks accurately assessed that Mr. Brandon was in extremis with

multiple stab wounds in his abdomen and back. He had a gaping, bleeding wound that

extended almost from his left ear to his right ear. Officer Hendricks, who was medically

trained, used heroic measures to keep Mr. Brandon alive at the scene and then in the

ambulance. This included holding Mr. Brandon's neck structures together so he could

breathe and bleed less. In the ambulance, Officer Hendricks asked Mr. Brandon his name

to which he responded, "Robert." Officer Hendricks asked Mr. Brandon, "Who did this to

you?" Mr. Brandon responded, "Pedro." The officer asked, "Does he live here?" The

victim responded, "No." The victim was then taken by trauma personnel into the hospital.

He died before arriving at the operating room.

        Detectives Erik Landis and Thomas Anderson of the Allentown Police Department

were assigned the investigation of Mr. Brandon's death. At the site of the stabbing, they

saw blood throughout the first floor of25 South Eleventh Street with a trail of blood to

where Mr. Brandon was found in the roadway. From interviews at the scene, the

detectives learned that Mr. Brandon lived with his brother, Robert Talley, at this address



                                              2
and that "Pedro" was the appellant, Pedro Junior Rodriguez. They determined that

appellant lived with his fiancee, Joelly Clemente, at 429 Lumber Street in Allentown. The

detectives examined appellant's cell phone records and saw that appellant placed several

calls to Ms. Clemente right after the attack on Mr. Brandon. The detectives found out that

appellant and Ms. Clemente traveled to Selinsgrove, Pennsylvania, that same day shortly

after the stabbing and their exchange of phone calls. Selinsgrove is located in Snyder

County, more than a two-hour drive from Allentown.

       Later in the afternoon of November 3, Detectives Landis and Anderson drove to

Selinsgrove. They went to the Selinsgrove Police Department to meet with the local chief

of police and to apprise him of their investigation. The detectives and the chief then drove

to 202 West Snyder Street in Selinsgrove where appellant and Clemente were believed to

be located. Both were there. The detectives asked appellant if he was willing to be

interviewed about an incident that occurred in Allentown earlier that day. Appellant

agreed to accompany the detectives to the Selinsgrove police station for an interview.

       At the start of the interview, Detective Landis informed appellant of his Miranda

rights. Appellant waived these rights and spoke with the detectives. The interview lasted

approximately two-and-a-half hours. Appellant initially denied stabbing Mr. Brandon, but

he later admitted it. Appellant was then taken into custody and charged by a complaint

with the criminal homicide of Mr. Brandon.

       On March 13, 2014, appellant filed an omnibus pre-trial motion which included a

motion to suppress the statements he made to the detectives. I conducted a hearing on the

motion on April 14, 2014, and I denied the motion by order with opinion dated July 23,



                                              3
2014.

        Appellant's jury trial began on January 5, 2015. At trial, appellant testified that he

stabbed Mr. Brandon but he claimed extenuating circumstances. On January 9, 2015, the

jury found appellant guilty of third-degree murder. On March 3, 2015, I sentenced

appellant to not less than twenty years to not more than forty years of state confinement.

Appellant filed a motion for reconsideration of sentence which I denied by order dated

March 13, 2015.

        Appellant filed the present appeal on March 24, 2015. In response to an earlier

order, appellant filed a "Concise Statement of Matters Complained on Appeal" as required

by Pa.R.A.P. 1925(b) (Concise Statement) on April 8, 2015. Appellant raises two issues in

his Concise Statement.


                            Discussion and Conclusions of Law

Jury Charge on Voluntary Manslaughter

        In Paragraph 1 of the Concise Statement, appellant argues:

                The Court erred by denying the defense request for a jury
                charge regarding the heat of passion and advising the jury
                of that basis for reducing the Criminal Homicide charge to
                a Voluntary Manslaughter. The defense believes that the
                evidence supported its request and that the jury should have
                been advised of that instruction.

        "It has long been the rule in this Commonwealth that a trial court should not

instruct the jury on legal principles which have no application to the facts presented at

trial." Commonwealth v. White, 490 Pa. 179, 182, 415 A.2d 399, 400 (1980) (citations

omitted). This principle is based on the idea that the members of the jury are charged with



                                                4
rendering a true verdict and providing extraneous and irrelevant instructions may confuse

them or provide obstacles to carrying out their duty. Id. Therefore, a trial court should

instruct a jury in a homicide case on heat of passion voluntary manslaughter only if there is

evidence to support such a charge. See Commonwealth v. Counterman, 553 Pa. 370, 719

A.2d 284 (1998), and Commonwealth v. Browdie, 543 Pa. 337, 671 A.2d 668 (1996).

        During the charge session at trial, defense counsel requested jury instructions for

both heat of passion and imperfect self-defense voluntary manslaughter. I denied the

request for a charge on heat of passion voluntary manslaughter because the trial evidence

only supported an instruction on imperfect self-defense voluntary manslaughter. I

instructed the jury on the latter, not the former.

        "A person is guilty of 'heat of passion' voluntary manslaughter 'if at the time of the

killing [he] reacted under a sudden and intense passion resulting from serious provocation

by the victim.?' Commonwealth v. Miller, 605 Pa. 1, 20, 987 A.2d 638, 649-650 (2009)

(quoting Commonwealth v. Ragan, 560 Pa. 106, 119, 743 A.2d 390, 396 (1999)). The

"heat of passion" encompasses "emotions such as anger, rage, sudden resentment or terror,

which renders the mind incapable of reason." Commonwealth v. Browdie, 543 Pa. at 344,

671 A.2d at 671.

                "Whether the provocation by the victim was sufficient to
                support a heat of passion defense is determined by an
                objective test: whether a reasonable man who was
                confronted with the provoking events would become
                'impassioned to the extent that his mind was incapable of
                cool reflection.' " (citations omitted). Significantly, we
                have clarified that both passion and provocation must be
                established, and that "if there be provocation without
                passion, or passion without a sufficient cause of
                provocation, or there be time to cool, and reason has


                                                 5
                 resumed its sway, the killing will be murder." (Citations
                 omitted).

 Commonwealth v. Busanet, 618 Pa. 1, 34, 54 A.2d 35, 55 (2012). The provocation must be

· · capable of producing an emotional state of such intensity that it "obscure[ s] temporarily

 the reason of the person affected." Commonwealth v. Laich, 566 Pa. 19, 27, 777 A.2d

 1057, 1061 (2001) (quoting Commonwealth v. McCusker, 44g Pa. 382, 386, 292 A.2d 286,

 288 n. 4 (1972)).

         A trial court must make an initial determination whether sufficient evidence of

 serious provocation has been presented before it submits a manslaughter instruction to the

 Jury. Commonwealth v. Carr, 398 Pa.Super. 306, 311, 580 A.2d 1362, 1365 (1990).

         Under imperfect self-defense, "a homicide is reduced from murder to voluntary

 manslaughter if the defendant subjectively believed circumstances justifying the killing

 existed, but objective reality negates that existence." Commonwealthv. Carter, 502 Pa.

 433, 442, 466 A.2d 1328, 1332 (1983).

                 [A] claim of imperfect self-defense must satisfy all the
                 requisites of justifiable self-defense (including that the
                 defendant was not the aggressor and did not violate a duty to
                 retreat [to] safety), with the exception that imperfect self-
                 defense involves an unreasonable, rather than a reasonable,
                 belief that deadly force was required to save the actor's life.

 Commonwealth v. Rivera, 603 Pa. 340, 362, 983 A.2d 1211, 1224 (2009).

         In arguing for jury instructions on both heat of passion and imperfect self-defense

 voluntary manslaughter, defense counsel could rely only on the trial testimony of appellant

 because there was no other testimony to support appellant's version of events. Appellant

 admitted that he stabbed the unarmed victim, but he claimed that the stabbing was done in



                                                 6
reaction to conduct by Mr. Brandon. (Appellant's testimony on the subject is found at

N.T., 1/8/15, pp. 85-173.)

       Appellant testified that he and Mr. Brandon worked together and became friends.

Appellant claimed that he suspected Mr. Brandon of stealing about $200 worth of items

from his truck in June of 2013. Despite that, between June and November of 2013,

appellant and Mr. Brandon socialized at times at each other's apartments. On November 2,

2013, the day before the murder, appellant testified that Ms. Clemente told him that some

of her jewelry was missing from the apartment that they shared on Lumber Street.

Appellant said that he immediately suspected Mr. Brandon because he was the only guest

that had been allowed in that apartment. Appellant walked to Mr. Brandon's apartment to

confront him about the thefts but Mr. Brandon was not there. Appellant spoke with Robert

Talley, the victim's brother. Mr. Talley told appellant that his own laptops and other items

were missing from his Eleventh Street apartment. Appellant stated that this confirmed for

him that Mr. Brandon had stolen the items from his truck and the jewelry from his

residence.

       Appellant returned to his apartment and discussed what Mr. Talley had told him

with Ms. Clemente. That night, according to appellant, he could not sleep well (but he did

sleep) because he was angry and disappointed with Mr. Brandon.

       The next morning, Sunday, November 3, appellant and Ms. Clemente planned to

travel to Selinsgrove where appellant was relocating to start a new job. Appellant again

decided to confront Mr. Brandon. Appellant told Ms. Clemente he was stepping out to buy

cigarettes. Instead, he walked to Mr. Brandon's apartment and arrived there at 7 a.m ..



                                              7
Appellant testified that he was still upset at this point but had "calmed down a lot" since

the previous night. Appellant knocked on the back door of Mr. Brandon's apartment. Mr.

Brandon unlocked the door and let appellant into the kitchen.

       Appellant testified that he questioned Mr. Brandon about the stolen items. He told

Mr. Brandon that he was disappointed but not upset. He just wanted his items returned.

Mr. Brandon responded that he did not have the items. Appellant then followed the victim

from the kitchen, down a hall and into the living room.

       As appellant described it, Mr. Brandon sat down on a sofa in the living room.

Appellant continued to ask about the missing items and Mr. Brandon continued to deny

that he had them. The argument escalated. Appellant testified that he saw Mr. Brandon

quickly reach with his right hand across his body to his left side. Appellant did not know

what Mr. Brandon was reaching for, but he knew "It wasn't nothing good." Appellant did

not testify that he believed the victim was reaching for a gun or other weapon. Appellant

claimed he panicked and he was afraid.

       Appellant testified that he remembered that he had a knife in his pocket so he

charged Mr. Brandon, pulled out his knife and began slashing in the area where Mr.

Brandon was reaching. After slashing Mr. Brandon, appellant stepped back to the hallway.

Mr. Brandon stood up and cursed at appellant. Appellant claimed he tried to "calm the

tension down." Appellant could see that Mr. Brandon was not holding any weapon. Mr.

Brandon then charged appellant. Appellant stumbled backwards. When the two men came

into contact, appellant slashed upwards with his knife at Mr. Brandon several times.

Appellant then pushed Mr. Brandon away from him and ran out of the apartment.



                                               8
       Mr. Brandon had three stab wounds, two of which were lethal. He also had six cut

wounds, two of which were lethal. While appellant admitted that he caused all of these

wounds to Mr. Brandon, he did not testify when during the altercation the wounds were

inflicted. Mr. Brandon did not possess a weapon. Defendant had no injuries. Defendant

claimed he discarded the knife somewhere outside the Eleventh Street address. The police

did not recover the knife despite thorough searches for it.

       If the jury accepted appellant's testimony, the jury would have been justified in

concluding that appellant honestly, but unreasonably, believed that Mr. Brandon was

reaching for a weapon and that his life was in danger. Thus, it was proper to instruct the

jury on imperfect self-defense voluntary manslaughter.

        On the other hand, appellant's testimony did not provide a basis for instructing the

jury on heat of passion voluntary manslaughter.

        The first argument made by the defense for this instruction relates to appellant's

belief that Mr. Brandon had stolen from him. Appellant testified that when he confronted

Mr. Brandon about the stolen items, Mr. Brandon did not deny the thefts. Instead, Mr.

Brandon said that he did not have the items. Mr. Brandon's repeatedly saying that he did

not have the items, as opposed to denying that he stole the items, was the provocation that

allegedly incited appellant to stab the victim. N.T., 1/9/15, p. 5. As a matter oflaw, this

could not serve as adequate provocation for voluntary manslaughter. Supposed theft could

not be sufficient cause to incite the passion of a reasonable person to kill a victim.

        Pennsylvania courts have held that serious provocation implicating voluntary

manslaughter exists where a victim threatens a defendant or a member of that defendant's



                                                9
family with physical violence. See Commonwealth v. Duffy, 355 Pa.Super. 145, 512 A.2d

1253 (1986), and Commonwealth v. Berry, 461 Pa. 233, 336 A.2d 262 (1975). Conversely,

a victim's causing a loss or destruction of a defendant's property has not been found to

provide the serious provocation necessary to require an instruction on voluntary

manslaughter. See Commonwealth v. Sheppard, 436 Pa.Super. 584, 648 A.2d 563 (1994).

       Defense counsel also argued that appellant stabbed Mr. Brandon while he was in

fear resulting from Mr. Brandon's appearing agitated and perhaps reaching for something

on the sofa. N.T., 1/8/15, p. 180. This is the blending of counsel's heat of passion theory

with his imperfect self-defense theory. Regardless, appellant's testimony did not support

giving a heat of passion instruction on this basis. Appellant never testified that viewing

Mr. Brandon reach with his left hand caused him to lose all composure or to enter an

intense emotional state that obscured his reason. Appellant's testimony was the opposite.

He testified that after he stabbed Mr. Brandon the first time on the sofa, he attempted to

reason with Mr. Brandon and "calm the tension" before stabbing him again. By his own

testimony, appellant was in control of his emotions and was not acting in the heat of

passion during his assault on Mr. Brandon.

       I properly denied the defense request that the jury be charged on heat of passion

voluntary manslaughter.


Voluntariness of Appellant's Statement to Police

        Paragraph 2 of appellant's Concise Statement reads: "The Court erred in failing to

suppress [appellant's] statement made to the police which were (sic) induced by the actions

of the interrogating officers when they threatened to arrest the [appellant's] family if the


                                               10
[appellant] did not admit to involvement in the crime."

       The interview of appellant was conducted almost exclusively by Detective Landis

with Detective Anderson in attendance. The interview started at 5:00 p.m. on November 3

and it concluded at 7:30 p.m .. It was broken into three segments.

       There was nothing that happened during the entire interview that could be

construed by appellant as threatening or coercive regarding charges for appellant's children

whose ages are unknown in the record of this case. Detective Landis did not point to

anything that the children allegedly did wrong.

       Appellant asserts only one reason that his confession during the third segment of

the interview should have been deemed involuntary, namely, that the detectives threatened

him with prosecuting Ms. Clemente unless he admitted the killing. This claim lacks merit.

The detectives said nothing improper to appellant about Ms. Clemente in view of the

information they had about her during the interview. Furthermore, the detectives did not

say that there would be a prosecution of Ms. Clemente. Rather, they said they would call

the district attorney to discuss what charges should be brought against Ms. Clemente when

they could not exclude her from involvement in the attack on Mr. Brandon. As I now

explain, the Commonwealth met its burden of proving that appellant's confession was

voluntary.

        The Supreme Court of Pennsylvania explained:

                       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


                                             11
               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.



               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.

Commonwealthv. Nester, 551 Pa. 157, 162-163, 709 A.2d 879, 882 (1998) (internal

citations omitted).

        A defendant's confession to police is not involuntary per se merely because the

defendant asserts that the confession was motivated by a desire to protect a family member

from prosecution. Commonwealth v. Smith, 85 A.3d 530, 538 (Pa.Super. 2014). Where a

defendant asserts such a claim, it only serves as "evidence which could be considered by

the trial court in determining whether the accused's will had been overborne."

Commonwealthv. Fleck, 324 Pa.Super. 227, 233, 471 A.2d 547, 550 (1984). See also

Commonwealthv. Ozovek, 270 Pa.Super. 468, 471, 411 A.2d 814, 815 (1979).

("Appellant's contention that he confessed out of fear that his wife might be implicated

would not negate, as a matter of law, voluntariness[;] it is simply additional evidence

which the court is free to believe or disbelieve.").

        There is no evidence to support appellant's claim that the police induced him to

confess by threatening to arrest his fiancee or any other family members. Appellant did



                                                12
not testify that police statements induced him to confess and there is no other evidence of

what caused him to confess. This allegation of error should be dismissed for this reason. I

turn to the content of the interview which reveals that there was nothingper se improper

about the statements by the detectives to appellant.

       The first segment of the interview lasted from 5:00 p.m. to 6:08 p.m .. (The

transcript of the first segment is Exhibit C-2(a).) During this segment, the police had not

yet interviewed Joelly Clemente, appellant's fiancee. At the start of this segment, the

detectives knew through appellant's phone records that he and Ms. Clemente had four

phone conversations on this Sunday morning right after the stabbing of the victim. N.T.,

4/14/14, p. 61. The detectives also knew that, right after the calls, appellant and Ms.

Clemente made the drive to Selinsgrove. N.T., 4/14/14, pp. 59-60, 71-73. The detectives

already suspected appellant of the stabbing based upon the victim's dying declaration that

Pedro stabbed him. With the cell phone records and the drive to Selinsgrove, they were

trying to figure out Ms. Clemente's exact involvement.

        Detective Landis stated a number of things about her during the first segment. He

told appellant that he was "not able to clear her" (Exhibit C-2(a), pp. 44-45; N.T., 4/14/14,

p. 59); maybe appellant and Ms. Clemente would "both go down for it" (Exhibit C-2(a), p.

48); "Right now, I'm thinking you and your wife (Ms. Clemente) came up with this plan to

... stab this guy" (Exhibit C-2(a), p. 52); and "This does not bode well for you or your

wife right now." Exhibit C-2(a), p. 71.

        Without having conducted an interview of Ms. Clemente, the detectives properly

tried to explore with appellant during the first segment the extent of her involvement in his



                                              13
activities that day. As Detective Landis testified at the suppression hearing, "At that point,

I was not sure what her involvement was in the homicide, and we would have arrested her

if the investigation led down that way." N.T., 4/14/14, p. 60. All the subjects that I related

in the immediately preceding paragraph were within the bounds of proper interrogation in

light of what the detectives knew. None of these statements was coercive.

       The second segment of the interview began at 6:21 p.m.. Between the first segment

and the second segment, Detective Landis drove back to 202 West Snyder Street in

Selinsgrove, interviewed Joelly Clemente for the first time, and then drove her to the

Selinsgrove police station. She stayed in a waiting area while Detective Landis went back

to do the second segment of the interview with the appellant.

       Joelly Clemente's statement to Detective Landis was materially different from what

appellant told Detective Landis during the first segment of the interview. Landis

confronted appellant with the conflicting information which contained matters that

incriminated the appellant in the killing. When appellant insisted that his version of events

was accurate and denied the various things said by Ms. Clemente, Detective Landis asked

appellant, "Do you want me to arrest her? Do you want me to arrest your fiancee?"

Appellant responded, "You don't have anything to arrest my wife for." Detective

Anderson answered, "False report." Detective Landis then recounted some matters that

could be incriminating against Ms. Clemente and he stated, "Who else do you live in the

house with? Your kids, or your, your fiancee? Shall I hit one of them up?" Exhibit C-

2(b ), pp. 8-9. Appellant still insisted that his version of events claiming innocence was

accurate. The second segment of the interview ended at 6:38 p.m .. Detective Landis left



                                              14
the interview room and separately conducted a taped interview with Joelly Clemente. He

returned to the interview room for the third and final segment of the interview with

appellant.

        The beginning time for the third segment of the interview is not stated on the

transcript but it began at some point after 6:38 p.m. and after Detective Landis had the

taped interview with Ms. Clemente. The transcript indicates it ended at 7:30 p.m .. Present

during the third segment of the interview were the two detectives, Ms. Clemente, and

appellant.

        In the third segment, Detective Landis once again confronted appellant with the

statements by Mr. Clemente that conflicted with his statements. Appellant continued to

insist that he was not with the victim on November 3. After several denials, Detective

Landis stated: "Get her out of here ....   [T]he District Attorney already approved the

charge against him. I'm not going to, do you want to stay for another three hours (it had

actually been two hours) and have him sit here and calls um his fiancee a liar and

everybody's lying? What we'll, we'll call about charges for everybody and, we'll, we'll be

done with it. ...   What do you think, Tom?" Exhibit C-2(c), p. 9. After other statements

by the detectives, appellant for the first time explained the alleged theft from his car and

what appellant's brother allegedly told him about thefts that he suffered. Appellant said

nothing about a theft of jewelry from his apartment. Appellant then gave an incriminating

version of events whereby he admitted that he went to the victim's apartment and stabbed

him.

        Detective Landis's statement to appellant that he would "call about charges for



                                               15
everybody" was not a threat that charges would be brought against Ms. Clemente. Rather,

it was an indication that he would make a call to see what charges were appropriate.

Appellant already knew that the detectives were in contact with the district attorney. They

had discussed the district attorney earlier in the interview. See, for example, Exhibit C-

2(a), p. 44.

        In summary, the evidence does not give any hint as to why appellant confessed to

stabbing the victim. It would be speculation to conclude that he confessed because of

threats or perceived threats made by the detectives. Some of Detective Landis's statements

which appellant argues were coercive arose in the context of proper questioning to try to

determine the respective involvement of appellant and his fiancee who were together

immediately before and after the stabbing. Detective Landis's other statements and

questions to appellant about Ms. Clemente that are challenged in this appeal could not

reasonably be construed as coercive.

        For all of these reasons, there is no merit to the two contentions on appeal. The

appeal should be denied.




May 8, 2015




                                              16
