J-S54002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TIMOTHY BROCK                           :
                                         :
                    Appellant            :   No. 719 WDA 2017

           Appeal from the Judgment of Sentence April 18, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0006503-2013


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.                      FILED NOVEMBER 09, 2018

      After a bench trial, the court found Timothy Brock guilty of second-

degree murder. The Commonwealth charged him with participating in the

robbery of a jitney driver, Monica Proviano, that culminated in Proviano being

shot in the head with a shotgun and killed. On appeal, Brock argues the court

erred when it found he had voluntarily waived his right to remain silent or to

have an attorney present during his interrogation. Finding no error in the

court’s conclusions, we affirm.

      Brock was apprehended after leading police on a chase through the

streets of Pittsburgh. The chase ended after he crashed the car that had been
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stolen from Proviano. Police read him his Miranda1 rights, and informed him

they were investigating how he came to be in possession of the stolen vehicle.

        Brock then signed a written waiver of his right to remain silent and right

to have his attorney present. After police challenged the details of his first

explanation, Brock admitted to conspiring to rob Proviano and knowing his

accomplice had a shotgun. Also, he admitted he heard a gunshot during the

robbery, but did not admit to seeing Proviano get shot.

        Brock argues the waiver of his right to remain silent and right to have

an attorney present during questioning was not knowing and voluntary. “Once

a motion to suppress evidence has been filed, it is the Commonwealth’s

burden to prove, by a preponderance of the evidence, that the challenged

evidence     was   not    obtained    in   violation   of   the   defendant’s   rights.”

Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012) (citations

omitted).

        Our standard of review in addressing a challenge to a trial court’s
        denial of a suppression motion is whether the factual findings are
        supported by the record and whether the legal conclusions drawn
        from those facts are correct. When reviewing the ruling of the
        suppression court, we must consider only the evidence of the
        prosecution and so much of the evidence of 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 legal conclusions drawn therefrom are in error.




____________________________________________


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

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Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).

      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citations omitted).

      The validity of a waiver of Miranda rights is a question of law. See

Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012). “It is the

Commonwealth’s burden to establish whether [a defendant] knowingly and

voluntarily waived his Miranda rights.” Eichinger, 915 A.2d at 1135-1136

(citation omitted).   To be voluntary, the waiver must not be the result of

pressure applied by the state. See Commonwealth v. Pruitt, 951 A.2d 307,

318 (Pa. 2008). For the waiver to be knowingly committed, it must be made

with “full comprehension of both the nature of the right being abandoned and

the consequence of that choice.” Id. (citation omitted).

      At the suppression hearing, Detective Daniel Mayer testified he and his

partner, Detective Zabelsky, interviewed Brock. The interview began at

approximately 4:30 in the afternoon on the day after Proviano was robbed

and murdered. See N.T., Suppression Hearing, 11/29/16, at 5. Officers had

taken Brock into custody approximately an hour beforehand. See id., at 6.




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Brock had access to food and water while he was in the interview room. See

id.

        Detective Mayer gave Brock Allegheny County Police Form R12, Rights

Warning Waiver. See id., at 7. This form contained a listing of the applicable

Miranda rights. See id. Detective Zabelsky read the form to Brock. See id.

Brock was then allowed time to review the form for himself. See id.

        Brock indicated, in writing, he understood his rights and that he was

nevertheless willing to speak with the detectives. See id. He then printed and

signed his name on the form. See id.

        Brock did not display any apprehension or hesitation in signing the form.

See id. Nor did he appear to be intoxicated. See id. He never asked for

attorney, despite being given an opportunity to make a phone call. See id.,

at 9.

        Brock argues his waiver was not knowingly entered as he was unaware

the detectives were investigating a homicide. A suspect cannot knowingly

waive his Miranda rights if he does not have an awareness of the general

nature of the crime being investigated. See Commonwealth v. Dixon, 379

A.2d 553, 556 (Pa. 1977). “It is a far different thing to forego a lawyer where

a traffic offense is involved than to waive counsel where first degree murder

is at stake.” Id. (citation omitted).

        However, the suspect need not have knowledge of the details of the

criminal offense at issue. See id. Instead, he need only be aware of the


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“transaction” being investigated. Id. (citations omitted). To prove that a

waiver was knowing and intelligent, the Commonwealth need only “establish

the circumstances attending the interrogation and the lack of ambiguity as to

the questioning’s direction and purpose.” Commonwealth v. Moss, 543 A.2d

514, 519 n.1 (Pa. 1988).

      Brock contends the direction and purpose of the interview was

ambiguous. He focuses on his age at the time (19 years old) and his

psychiatric issues as circumstances indicating he was unaware of the nature

of the transaction being investigated.

      The suppression court found the circumstances established that Brock

was aware he was going to be questioned about the murder of Proviano. We

can find no error in the court’s conclusion. Brock was questioned less than 48

hours after the robbery and murder of Proviano. He was found driving the car

stolen from her.

      While Brock focuses on the technical distinction between a charge of

receiving stolen property and a charge of murder, we note that under the

circumstances of this case the crimes are factually related. Proviano was

murdered during the robbery. As such, it is clear Brock was aware of the

nature of the transaction the detectives were investigating.

      In addition, the court correctly found there was no evidence Brock was

mentally impaired or incapable of acting voluntarily. The record supports this

finding. Thus, the circumstances established he knowingly and voluntarily


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waived his Miranda rights. As this is the only issue raised by Brock on appeal,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018




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