J-A07031-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                  Appellant               :
                                          :
                        v.                :
                                          :
RODNEY HOWARD, JR.,                       :
                                          :
                  Appellee                :    No. 1771 WDA 2015

               Appeal from the Order Entered November 3, 2015
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013050-2014

BEFORE:     OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED JUNE 21, 2017

      The Commonwealth of Pennsylvania appeals from the November 3,

2015 order granting the motion to suppress filed by Rodney Howard, Jr.

(Howard). We affirm.

      The suppression court summarized the underlying facts and history of

this case as follows.

            [Howard] was charged with criminal homicide and
      person[s] not to possess a firearm [related to a] shooting [which
      resulted in] the death of Hosea Davis on January 20, 2014.
      [Howard] was arrested on September 18, 2014. [Howard’s]
      preliminary hearing took place on September 26, 2014[,] at
      which time he was represented by counsel. … After his arrest
      and while in the Allegheny County [J]ail awaiting trial and also
      later in a federal facility in Ohio, [Howard] came into contact
      with another inmate, Kendall Mikell [(Mikell)].       Mikell and
      [Howard] had known each other for years.

            Prior to trial, [Howard] filed a pretrial motion in which he
      alleged that the Commonwealth intended to call Mikell as a
      witness to testify regarding alleged incriminating statements

*Retired Senior Judge assigned to the Superior Court.
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     made by [Howard] to Mikell while both were inmates at the
     Allegheny County Jail and in the federal facility. … [Howard’s]
     motion alleged that Mikell was an agent of the prosecution
     throughout the period in question, and the prosecution’s use of
     him to elicit statements from [Howard] violated [Howard’s] Sixth
     Amendment right to counsel, relying on Massiah v. United
     States, 377 U.S. 201 [] (1964) and Commonwealth v. Moose,
     602 A.2d 1265 [(Pa. 1992)].

           A hearing on the suppression motion was held on
     November 2, 2015. At the hearing, Mikell, who was 28 years
     old, testified that he [had known Howard] since they were 9 or
     10 years old and they had gone to school together. He testified
     that in July of 2013 he was lodged in the Allegheny County Jail
     as the result of federal charges for conspiracy to possess a
     firearm and remained there until approximately January of 2015.
     As of the date of the hearing, Mikell had [pled] guilty to the
     federal charges but had not yet been sentenced. He denied that
     any promises with respect to his charges had been made to him
     in exchange for his testimony against [Howard].

           [Mikell] testified while in the Allegheny County Jail with
     [Howard], from October to December 2014, he talked with
     [Howard] on a daily basis as they were both in the same pod.
     He testified that he was aware that [Howard] was in jail on
     homicide charges. He also acknowledged that he talked with
     [Howard] about the charges and that he obtained information
     that [Howard] allegedly told him regarding the murder including:
     information regarding one of the witnesses to the murder;
     [Howard’s] motives; that [Howard] used an assault weapon;
     where [Howard] was when he learned of the victim’s location on
     the night of the murder; that [Howard] wore a mask when he
     got to the location; that [Howard] saw his father and an uncle at
     the scene of the murder; that [Howard] got very close to the
     victim and shot him 14 times; that [Howard] then fled to
     McKeesport and later to New York where he stayed for months;
     and, discussions that [Howard] then had with his attorney,
     including possible defenses.

           Mikell acknowledged that … in December 2014 [he met]
     with law enforcement but denied that prior to that meeting he
     had been asked by any law enforcement to obtain information
     from anyone in jail. He testified that when he first met with law
     enforcement agents it was a result of his writing to an agent on

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     his case and he was not instructed to return to jail and obtain
     any information from other inmates. Mikell also acknowledged
     that he was with [Howard] not only in the Allegheny County jail
     but also at a federal facility and also talked to [Howard] while at
     that facility[;] however[, Mikell] was transferred from that
     facility for his own safety.

            Mikell testified that he had another meeting with law
     enforcement in May of 2015 and provided an audio statement
     but there was no new information from [Howard] that he [had
     not already] told them in the December 2014 meeting. Mikell
     also acknowledged that he testified or provided information to
     state or federal authorities in cases involving Samuel Mitchell,
     William McGraw and Henry Little-Proctor. He testified that he
     first came forward to provide information “to get consideration
     for a time cut” but when he realized that he was not going to be
     classified as a career criminal for federal sentencing purposes,
     he did not want to testify out of concern for his own safety.
     Mikell testified, however, that he changed his mind about
     testifying about [Howard] when he learned of statements made
     by [Davis’s] mother about [Davis’s] daughters and that
     [Howard] was a danger to the community. Mikell testified that
     he was “touched” and he informed his lawyer that he would
     come forward with the information about [Howard].

            On cross examination, Mikell acknowledged that when he
     first came forward with information it was in order to get
     consideration on his sentence. He testified that when he first
     sent a letter to law enforcement about providing information it
     concerned the shooting death of Susan Sidney … and a suspect
     in that case, Henry Little-Proctor. This first meeting took place
     on July 17, 2014 and that it was information that he allegedly
     received from Little-Proctor while they were in adjoining cells in
     jail. As a result of that meeting he discussed getting a “5(k)” or
     a recommendation from the federal authorities regarding a
     downward deviation in his sentencing guidelines.          He also
     acknowledged that after leaving the July 17, 2014 meeting he
     returned to the county jail and received more information from
     Little-Proctor regarding the Susan Sidney murder. Ultimately
     the December 2014 meeting was set up with law enforcement
     and he provided them with additional information. He also
     supplied them with the information that he had received from
     [Howard].



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           Mikell also indicated that he believed that there [were]
     other meetings with law enforcement between July and
     December 2014 concerning Samuel Mitchell. Mikell testified that
     after the December 2014 meeting he then returned to the
     county jail and talked with [Howard] again. He denied, however,
     that he agreed at the December 2014 meeting to provide
     information regarding the murder that [Howard] was charged
     with. When specifically asked if he had an agreement in the fall
     of 2014 with law enforcement to provide information on Little-
     Proctor, Mitchell and [Howard], Mikell denied any agreement
     stating: “I didn’t sign no agreement until after everything.” He
     again acknowledged that when he contacted law enforcement
     that he was trying to get a sentence reduction and that when he
     was in the jail he was trying to get information to provide to the
     government.

            Mikell also testified that after the December 23, 2014
     meeting with the prosecutor he returned to the county jail where
     he was still housed with [Howard] until [Howard] was sent to
     “the hole” about two weeks later. Mikell also acknowledged that
     [Howard] was transferred to a federal facility in Ohio and that he
     was later transferred to the same facility and was housed on the
     same block, where he again had contact with [Howard]. He
     testified that while at the Ohio facility he learned additional
     information about [Howard’s] defense in a different federal case,
     but testified that he did learn that the Davis murder was
     allegedly motivated by [Howard’s] desire to “take over the east
     side” and that “he wanted to make an example out of the
     victim.” He also indicated that he “learned a lot of things” about
     the murder case but [stated on the stand “n]othing I can pull out
     of my brain off the top.”

           Mikell acknowledged that there was a third meeting with
     law enforcement on May 28, 2015[,] but that information
     regarding firearms, pills and drugs being stolen from [Howard]
     had been previously supplied in the December meeting. … On
     redirect, Mikell testified that he did not provide any new
     information to law enforcement in the May 2015 meeting that he
     had not already supplied in the December 2014 meeting.

           Near the conclusion of the suppression hearing[,] defense
     counsel, who was seeking to establish the different information
     given by Mikell to law enforcement in the various meetings[,]
     indicated that “[Detective] Boose is going to have to be here,”

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      and referenced differences in the detective’s report regarding the
      information supplied by Mikell at the various meetings. The
      scheduling of Detective Boose’s testimony was then discussed,
      along with the possible testimony of two other detectives. In
      addition, argument on the motion was received. On November
      3, 2015, upon consideration of the testimony from the
      suppression hearing, the motion to suppress was granted. The
      Commonwealth filed a [motion for reconsideration,] which was
      denied after a hearing on November 5, 2015.

Suppression Court Opinion, 7/21/2016, at 2-7 (record citations omitted).

This timely-filed appeal followed.1

      The Commonwealth presents one issue for this Court’s review:

“Whether the [suppression] court erred finding that the Commonwealth’s

proffered jailhouse witness was acting as an agent of the government when

he   obtained   inculpatory   statements    from   [Howard],   in   violation   of

[Howard’s] Sixth Amendment right to counsel?”2 Commonwealth’s Brief at

7.

      We consider the Commonwealth’s issue mindful of the following.

      When the Commonwealth appeals from a suppression order, this
      Court follows a clearly defined scope and standard of review. We
      consider only the evidence from the defendant’s witnesses
      together with the evidence of the prosecution that, when read in
      the context of the entire record, remains uncontradicted. This
      Court must first determine whether the record supports the
      factual findings of the suppression court and then determine the
      reasonableness of the inferences and legal conclusions drawn

1
 Both the suppression court and the Commonwealth have complied with
Pa.R.A.P. 1925.
2
  In its brief, the Commonwealth presented a second issue originally
challenging the trial court’s exclusion of a statement pursuant to the hearsay
rule. However, at oral argument, counsel for the Commonwealth notified
this Court that the Commonwealth was withdrawing that issue.

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     from those findings. In appeals where there is no meaningful
     dispute of fact, as in the case sub judice, our duty is to
     determine whether the suppression court properly applied the
     law to the facts of the case.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super.

2013) (quotation marks and citations omitted).

     As the issue in this case also implicates a defendant’s right to counsel,

we observe the following.

     The Sixth Amendment guarantees the accused, at least after the
     initiation of formal charges, the right to rely on counsel as a
     “medium” between him and the State. … [T]his guarantee
     includes the State’s affirmative obligation not to act in a manner
     that circumvents the protections accorded the accused by
     invoking this right. The determination whether particular action
     by state agents violates the accused’s right to the assistance of
     counsel must be made in light of this obligation. Thus, the Sixth
     Amendment is not violated whenever — by luck or happenstance
     — the State obtains incriminating statements from the accused
     after the right to counsel has attached. However, knowing
     exploitation by the State of an opportunity to confront the
     accused without counsel being present is as much a breach of
     the State’s obligation not to circumvent the right to the
     assistance of counsel as is the intentional creation of such an
     opportunity. Accordingly, the Sixth Amendment is violated when
     the State obtains incriminating statements by knowingly
     circumventing the accused’s right to have counsel present in a
     confrontation between the accused and a state agent.

Maine v. Moulton, 474 U.S. 159, 176 (1985) (internal citation removed).

See also Massiah v. United States, 377 U.S. 201 (1964); United States

v. Henry, 447 U.S. 264 (1980).

     In Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992), the

Pennsylvania Supreme Court applied Massiah, Henry, and Moulton to a

situation where an informant obtained incriminating information from fellow

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inmates, including Moose, pursuant to an “implied understanding” with the

district attorney.      The informant “was called the ‘monsignor’ because so

many inmates allegedly confessed to him.” Id. at 1270. During a post-trial

hearing, the district attorney admitted that the informant had been kept in

the county jail for three years because he was supplying the district

attorney’s office with information about various inmates.              Id.   The district

attorney further admitted that he planned to make the informant’s

cooperation known at the time of his sentencing, but denied instructing the

informant to gather information. Id.

      Nevertheless,      the   Court    concluded     that     the   informant     was    a

government agent, emphasizing the government’s repeated deferral of his

sentencing every time he produced a new confession and the district

attorney’s plan to give a lenient recommendation at his sentencing. Id. at

1270-71.       “Although the district attorney may have not given [the

informant] specific instructions, it is clear that [the informant] was well

aware of what he had to do while in jail to get a good recommendation at his

sentencing.” Id. The government was not required to place an informant in

the   jail   with   a   specific   target   in    mind;   it   was   enough      that    the

“Commonwealth intentionally left him there to harvest information from

anyone charged with a crime and awaiting trial.”                Id. (emphasis added).

Moreover, the informant questioned Moose in a manner designed to elicit

incriminating information, such as asking him whose knife was used to kill



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the victim, making the situation “distinguishable from the case in which an

inmate unexpectedly comes forward with incriminating information about a

fellow inmate … or where an informant is a passive listener to a heartfelt

confession.” Id. at 1270 (citations omitted). The above facts convinced the

Court that the Commonwealth knowingly circumvented Moose’s Sixth

Amendment right to counsel, warranting a new trial. Id.

     Six years later, our Supreme Court confronted a similar situation. See

Commonwealth v. Franciscus, 710 A.2d 1112, 1119 (Pa. 1998).               In

Franciscus, Daniel Krushinski, who was in jail awaiting sentencing, initiated

contact with police to inform them that he had information about a fellow

inmate’s role in an armed robbery, and later met with police detectives to

provide them with the information.    Id. at 1113-14. Subsequently, police

detectives held a second meeting with Krushinski, this time with an assistant

district attorney in attendance, and the law enforcement officials agreed

they would be available upon request to testify that Krushinski had provided

information to them in the armed robbery prosecution.          Id. at 1114.

Although not part of the express agreement, after the meeting the police

deposited $45.00 into Krushinski’s prison account so that Krushinski could

maintain the façade amongst his fellow inmates that he had connections on

the outside. Id.

     Next, Krushinski contacted a police lieutenant and offered to provide

him with information involving a second inmate.     Id.   After obtaining the



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information from Krushinski, the lieutenant agreed to testify about his

cooperation when requested. Id. Inmates learned Krushinski was providing

information to the police and assaulted him. Id. Krushinski contacted the

lieutenant, who assisted Krushinski with transferring him to maximum

security for his safety and gave Krushinski his home telephone number. Id.

     While in maximum security, Krushinski and Franciscus were separated

by one cell. Id. at 1115. Krushinski “immediately engaged” Franciscus in

conversations by “relentlessly questioning [him] about the details of the

homicide charge” on which he was being held and offered his assistance

based upon Krushinski’s alleged connections outside of prison.      Id.   Five

days after his transfer to maximum security, Krushinski requested that his

attorney contact a state police trooper investigating the murder with which

Franciscus had been charged so that he could provide the trooper with

information he obtained from Franciscus.    Id.    The trooper arranged a

meeting between herself, Krushinski, and the district attorney who was

prosecuting the case for that same day.    Id.    Prior to Franciscus’s trial,

Krushinski pled guilty to his pending charges, and four police officers,

including two investigating the murder with which Franciscus had been

charged, appeared to testify regarding the assistance that Krushinski had

provided in the three cases. Id.

     On appeal, the Pennsylvania Supreme Court found the facts to be

similar to those evaluated in Moose.



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      Although Krushinski’s initial contacts with the Pennsylvania State
      Police and local police in connection with the [armed robbery]
      matter were unexpected, Krushinski’s subsequent agreement
      with them that they would inform the [sentencing court] of his
      cooperation at the time of his sentencing altered their
      relationship. The subsequent contacts and information provided
      by Krushinski must be viewed in the context of the agreement.

Id. at 1120. The Court concluded that notwithstanding the police’s lack of

instructions to target any particular inmate, Krushinski was encouraged to

obtain whatever useful information he could in exchange for a reward, and a

new trial was warranted due to the Commonwealth knowingly circumventing

Franciscus’s right to counsel under the Sixth Amendment and Article I,

Section 9 of the Pennsylvania Constitution. Id. at 1120-21.

      In the instant case, the Commonwealth contends that Moose is not

controlling because Mikell was trying to “curry favor with the government”

by providing information on his own accord and the government never

conveyed an implied agreement to assist Mikell if he provided information to

them. Commonwealth’s Brief at 19.

      There is no dispute that, initially, Mikell came forward on his own and

offered to provide information on the Little-Proctor case. Following the initial

meeting in July 2014, however, in the suppression court’s view,

      there was an understanding on Mikell’s part that providing
      information to law enforcement regarding various inmates could
      be valuable in seeking a recommendation for a sentence
      reduction. In addition, it is clear that law enforcement conveyed
      to Mikell, at least by implication, that it was willing to receive
      information regarding various inmates, as it did not only on
      Little-Proctor, but also on Mitchell, McGraw and [Howard].



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Suppression Court Opinion, 7/21/2016, at 9. The suppression court found

“Mikell was well aware of what he had to do while in jail,” and, although the

government may not have instructed Mikell to obtain information regarding

Howard specifically, there was still an implied agreement that Mikell should

obtain information from inmates generally in exchange for a potential

sentence reduction.      Id.   The suppression court also pointed to Mikell’s

transfer to the federal facility shortly after Howard was transferred there,

indicating that the Commonwealth was willing to facilitate interaction

between them.        Id. at 10.   Based on these facts, the suppression court

concluded that Mikell had been acting as a government agent since July

2014 and at all times when he elicited information from Howard.

     Although the Commonwealth may not have gone quite as far as it did

in Moose by keeping an informant in jail for years, or in Franciscus by

providing   direct    payments    to   an    informant,   the   suppression   court’s

determination that the Commonwealth and Mikell had an implied agreement

is supported by the record.

     As     our   Supreme      Court   has    recognized,   direct   proof    of   the

Commonwealth’s knowledge is seldom available, but proof that the

Commonwealth must have known its agent was likely to obtain incriminating

statements from the accused in the absence of counsel is enough. Moose,

602 A.2d at 1270 (citing Moulton, 474 U.S. at 176 n.12 (Brennan, J.,

concurring)).     While initially Mikell approached the Commonwealth with



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information about Little-Proctor on his own accord, he subsequently provided

information about three other defendants, including Howard.               Mikell

admitted to questioning Howard repeatedly about aspects of his case, such

as asking him why he did it, over the course of multiple conversations. N.T.,

11/2/2015, at 22-25.      The information Mikell obtained from Howard was

detailed and extensive.    The Commonwealth stayed in contact with Mikell

regarding the information he obtained from various inmates, meeting with

him at least three times and on other unspecified occasions.

      In these circumstances, it is reasonable to conclude the government

implicitly encouraged Mikell to elicit deliberately information from other

inmates, thereby fostering his hope that his efforts would pay off in the form

of a lenient recommendation down the road. In Franciscus, it was of no

significance that it was the informant who initiated contact with the

government each time he obtained information about a new defendant,

because the government condoned the informant’s methods by continuing to

meet with the informant, thereby implicitly encouraging him to keep going.

Similarly, in Moose,      the   government acquiesced    in    the   informant’s

harvesting of information from multiple defendants over time.        The sheer

number of “confessions” obtained by Mikell indicates that Mikell was not

merely a passive listener or the unexpected recipient of incriminating

information. C.f. Commonwealth v. Hannibal, 156 A.3d 197 (Pa. 2016)

(holding there was no government agency where the informant came



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forward on his own initiative after his cellmate came to him for advice and

opinions and subsequently confessed to killing the informant’s acquaintance,

even if the government later agreed to provide testimony about informant’s

cooperation to sentencing court).

      The Commonwealth argues that the federal government, not the

Commonwealth, directed Mikell and Howard’s movements back and forth to

federal prison.      Commonwealth’s Brief at 18 (citing various federal

regulations).     However, considering that federal and state officials were

present in the July and December 2014 meetings, see N.T., 11/2/2015, at

44, 49, 57, the suppression court was justified in inferring that the

Commonwealth helped facilitate Mikell’s continued proximity to Howard in

federal prison.

      Finally, the Commonwealth contends it “sought to call the relevant law

enforcement officers to make its case that it did not manipulate Mikell” into

obtaining information from Howard and the suppression court “denied the

Commonwealth that opportunity.” Commonwealth’s Brief at 20. The record

indicates, however, that the Commonwealth never requested an opportunity

to present the testimony of the police officers until it filed a motion for

reconsideration after the suppression court issued its ruling.     The only

reason testimony of the police officers was contemplated at the suppression

hearing was due to defense counsel’s request. N.T., 11/2/2015, at 75.




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     Because the suppression court’s factual findings are supported by the

record, and the suppression court’s inferences and legal conclusions drawn

from those findings were reasonable, the suppression court did not err by

suppressing Mikell’s testimony.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2017




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