J-S08026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TORRIANO BEARD                             :
                                               :
                       Appellant               :   No. 1080 WDA 2019

                Appeal from the Order Entered June 27, 2019
       In the Court of Common Pleas of Erie County Criminal Division at
                       No(s): CP-25-CR-0001932-2016


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                            FILED MARCH 30, 2020

       Torriano Beard (Appellant) appeals from the judgment of sentence1

entered in Erie County Court of Common Pleas, following a remand by this

Court to determine whether the statement he made to police was voluntary.2

Upon remand, the trial court has conducted an evidentiary hearing, concluded

Appellant’s statement was voluntary, and re-imposed the judgment of


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1 While Appellant purported to appeal from the June 28, 2019, order denying
his post-sentence motion, the appeal lies properly from the judgment of
sentence entered February 28, 2017. See Commonwealth v. Borovichka,
18 A.3d 1242, 1245 n.1 (Pa. Super. 2010). Accordingly, we have amended
the caption.

2See Commonwealth v. Beard, 808 WDA 2017 (unpub. memo.) (Pa. Super.
Nov. 13, 2018) (vacating judgment of sentence and remanding for evidentiary
hearing).
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sentence for his jury convictions of first-degree murder3 and related offenses.

We affirm.

        As the trial court and the parties are familiar with the procedural history

of this case, we set forth an abbreviated summary. Appellant was charged

with homicide and related offenses based on evidence that in the early

morning hours of February 14, 2016, he and a cohort, Lavance Kirksey, both

shot Jemar Phillips4 (the victim) in the parking lot of a bar. On June 23, 2016,

ten days after the charges were bound over for trial at a preliminary hearing,

Appellant, along with his then-attorney, the late John Moore, Esq., gave a

statement to City of Erie Police Officer Rick Lorah at the police station. The

statement was not recorded, and Appellant and the assistant district attorney

(ADA) had agreed, generally, that the statement would not be used against

Appellant.5 N.T. Jury Trial Day 1, 1/17/17, at 16, 20.

        On January 12, 2017, Appellant filed a motion in limine to exclude, inter

alia, the statement he made to Officer Lorah. Appellant averred the parties’

agreement, “that the statement ‘would not be used against him,’” precluded


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3   18 Pa.C.S. § 2502(a).

4The victim’s first name was also spelled as Jermar in the record. See N.T.
Post Trial Motion, 6/27/19, at 4.

5 While the statement was not video-recorded, Officer Lorah summarized the
statement in a report. N.T., 6/27/19, at 11.




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any introduction of the statement at trial.         Appellant’s Motion in Limine,

1/12/17, at 4. Appellant further asserted he “was never Mirandized.”6 Id.

The trial court heard argument on Appellant’s claim on the morning of the first

day of trial.7 Appellant additionally argued that “part of the incentive to come

forward and give the statement [was] that it won’t be used against him.” N.T.,

1/17/17, at 21. The trial court ruled the Commonwealth could not use the

statement in its case in chief, but if Appellant were to take the stand and say

“something different,” then the Commonwealth could use the prior statement

to impeach him.8 Id. at 20.

        Appellant did not testify at trial. The jury found him guilty of first-degree

murder, conspiracy to commit murder, possessing instruments of crime,

aggravated assault, recklessly endangering another person, and firearms not

to be carried without a license.9 On February 28, 2017, the trial court imposed


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

7By the time of trial, Appellant was no longer represented by Attorney Moore,
and was represented by new counsel.

8 The Commonwealth stated it did not intend to present the statement in its
case in chief, but argued that if Appellant were to testify inconsistently with
the statement, it should be permitted to present the statement. Id. at 16,
18-20 (“So we can let [Appellant] lie or be inconsistent and we have no control
over that? That’s not how the agreement was.”; “But we never said if you
take the stand and give a different statement[,] we can’t use [the
statement.]”). The trial court agreed. Id. at 21 (“[If Appellant] lies about
something — he can’t have it both ways.”).

9   18 Pa.C.S. §§ 903(a), 907(a), 2502(a), 2702(a), 2705, 6106(a).


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a sentence of life imprisonment without parole. Appellant filed a post-trial

motion, which was denied.

      Appellant appealed to this Court, which issued a memorandum decision

on November 13, 2018. This Court construed Appellant’s claim — that the

trial court’s permitting the statement to be used for impeachment purposes

violated the parties’ agreement that it would not be used against him — as an

argument that his statement was involuntary because it was induced by a

false promise made by the Commonwealth. Beard, 808 WDA 2017 (unpub.

memo.) at 17, 20. This Court reasoned, pursuant to Article 1, Section 9 of

the Pennsylvania Constitution and Pennsylvania decisional authority, that

Appellant’s statement to Officer Lorah would be admissible for impeachment

purposes if it were voluntarily given. Id. at 19, citing Pa. Const. Art. I, § 9

(“The use of a suppressed voluntary admission or voluntary confession to

impeach the credibility of a person may be permitted and shall not be

construed as compelling a person to give evidence against himself.”);

Commonwealth v. Busanet, 54 A.3d 35, 59 (Pa. 2012) (“[R]egardless of

whether the challenged statement was obtained in violation of Miranda, it

would not be subject to suppression because it was admitted for the limited

purpose of impeaching [the defendant’s] testimony.”).

      This Court observed, however, the trial court made no factual findings

or legal conclusions regarding the voluntariness of Appellant’s statement, and

the record was deficient to allow this Court to undertake plenary review of


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such a question. Id. at 20-21, citing Commonwealth v. Templin, 795 A.2d

959, 961 (Pa. 2002) (“The determination of whether a confession is voluntary

is a conclusion of law and, as such, is subject to plenary review.”). Thus, this

Court remanded to the trial court to “make factual determinations regarding

the circumstances of Appellant’s statement to police[,and] then decide, under

the totality of those circumstances (including the agreement reached by the

parties), whether Appellant’s statement was voluntary.”      Beard, 808 WDA

2017 (unpub. memo.) at 21-22. We instructed:

       If the court determines that [the statement was not voluntary],
       and therefore the statement is inadmissible for impeachment
       purposes, then the court shall order a new trial. If, on the other
       hand, the court finds that Appellant’s statement was voluntary,
       and admissible for impeachment purposes as it originally ruled,
       then the court shall re-impose Appellant’s judgment of sentence.
       Appellant may then file an appeal, limited to issues concerning the
       court’s decision on remand.

Id. at 22.10

       On remand, the trial court conducted an evidentiary hearing on June 27,

2019. By this time, Attorney Moore had passed away. Officer Lorah testified

to the following: after the preliminary hearing, Attorney Moore contacted him

“on multiple occasions,” seeking to have Appellant give a statement. N.T.,

6/27/19, at 6. Officer Lorah was not “interested in speaking to” Appellant,


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10 This Court denied relief on Appellant’s other issues on appeal — challenges
to the weight of the evidence and the admission of certain testimony.




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because the police “had already built [its] case” based on multiple statements

from an eyewitness, who was in the victim’s car, that Appellant and another

man fired guns at the victim, and the same witness’ identification of Appellant

as one of the shooters.11 Id. at 7, 16-17, 26. Nevertheless, Officer Lorah and

the Commonwealth agreed to hear a statement from Appellant. Id. at 6. Per

Attorney Moore’s request, the statement was not recorded and Appellant was

not advised of Miranda rights.            Id. at 8-11.   Attorney Moore was with

Appellant the entire time, approximately 45 minutes, he was in the police

department; the statement itself took approximately 15 minutes. Id. at 17-

18.   Additionally, the ADA agreed that the Commonwealth would not use

anything in his statement against him. Id. at 17, 20.

       Officer Lorah did not ask any questions, but simply took the statement

Appellant wished to give.        N.T., 6/27/19, at 15, 30.     At the post-remand

hearing, Officer Lorah summarized Appellant’s statement as follows: on the

night of the shooting, Appellant was in the bar parking lot with Kirksey (the

alleged other shooter) and two others.           Id. at 11.   Appellant had a .357

revolver in his pocket. Appellant saw his friend, Antonio Barnes, who was with

the victim. Appellant had “a beef” with the victim about a woman. Id. at 12.

The victim said “something about should we fight or should there be a beef


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11This eyewitness, along with Antonio Barnes, was a passenger in the victim’s
car when they entered the parking lot. As stated infra, Appellant knew
Barnes.


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here,” and “out of nowhere, . . . Kirksey comes running” with a .45 caliber

handgun and shot the victim. Id. at 12-13. The victim fell and Appellant ran

to him and said, “[Y]ou saw who shot you. It wasn’t me,” and the victim

“agreed.” Id. at 13. Appellant argued with Kirksey about the shooting, but

then gave Kirksey his gun so that he (Appellant) could go in the bar to tell

friends — who Appellant had dropped off — they had to leave. Id. Kirksey

then ran over and shot the victim again, this time with Appellant’s gun. Id.

at 13-14.

      Appellant testified to the following: after his preliminary hearing, he

talked two or three times with Attorney Moore, who advised him to talk to the

police and the ADA to see if “they could help [him] out in some way.” N.T.,

6/27/19, at 33-34, 42, 45. Appellant responded he “didn’t really want to give

a statement, but [he] would listen to whatever they had to say.” Id. at 33.

On the morning of the statement, prison officials informed him his attorney

was there and they were going to the police station. Id. at 34. Upon arrival

at the police station, Appellant was placed in a holding cell for 30 to 45

minutes, where he again told Attorney Moore he did not want to give a

statement.    Id. at 35-36.   The ADA joined them and stated she was not

promising anything in terms of helping him, at which point Appellant told

Attorney Moore he “wanted to end the interview.” Id. at 37. The ADA left,

and Attorney Moore again advised Appellant it was in his best interest to make

a statement to the police. Id. at 38. Detectives then entered the room and


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tried “to talk [him] into giving a statement,” promising to “look into” any

statement he gave and that the statement would “not be used against [him]

at trial.” Id. at 38. Appellant believed this “meant that anything that [he said

would] not be used against [him] at trial.” Id. at 39. At this point, Appellant

felt “stressed out.”   Id. at 38.   Appellant testified his statement was not

voluntary because Attorney Moore “was basically trying to force” him to give

a statement, and the detective was “trying to talk [him] into giving a

statement.”    Id. at 42.   Subsequently, Appellant told his new counsel he

wished to testify at trial, but counsel advised him not to because the ADA

“would use [the] prior statement against” him. Id. at 39-40. Appellant was

surprised because he “didn’t have a clue that it was going to be used.” Id. at

40.   Finally, Appellant agreed that “most of” Officer Lorah’s testimony

concerning the contents of his statement was true; Appellant clarified the

reason he gave Kirksey his gun before going into the bar was because the bar

had a metal detector. Id. at 40-41.

      The trial court concluded Appellant’s statement was voluntary, and thus

admissible for impeachment purposes. N.T., 6/27/19, at 69. The court further

found that, with respect to Appellant’s decision not to testify at trial, he did

not say at this post-remand hearing “that it was because of the statement

that he gave” to Officer Lorah. Id. at 68. The court also noted that at trial,

a colloquy was conducted, which informed Appellant of his right to testify. Id.

at 67-68.     Accordingly, the court re-imposed the judgment of sentence,


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including the mandatory term of life imprisonment without parole.              Id.

Appellant filed a post-trial motion, which was denied, and took this timely

appeal.

      Appellant raises three issues for our review:

      1. Was the trial court in error finding Appellant’s statement of
      June 23, 2016 was voluntary?

      2. Was the trial court in error finding that Appellant did not testify
      that the use of his June 23, 2016[, statement] as impeachment
      was the reason he did not testify at trial?

      3. Was Appellant’s counsel permitted to waive his Miranda
      rights?

Appellant’s Brief at 3.

      First, Appellant avers the trial court erred in finding that under the

totality of the circumstances, his June 23, 2016, statement was voluntary.

Appellant acknowledges he “was not in an abusive environment” and “his

attorney was with him throughout the interview,” but he cites his post-remand

testimony that he “did not believe that his statement was voluntary.”

Appellant’s Brief at 12, citing N.T., 6/27/19, at 42. Appellant contends “he

did not make an informed decision to make a statement” and “was lulled into

making a statement,” where he was a prisoner in a police station, he was told

his statement would not be used against him at trial, and he was not advised

of his Miranda rights nor told his statement could be used for impeachment

purposes. Id. at 13. Appellant further asserts he “was unable to exercise his




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rights to testify at his trial because his statement . . . was going to be used as

impeachment evidence.” Id. at 16.

      In his second issue, Appellant alleges the trial court erred in finding his

decision to not testify at trial was not affected by the potential use of his

statement for impeachment. Instead, Appellant maintains, he testified at the

remand hearing that he “had every intention to testify at his trial,” but did not

upon trial counsel’s advice. Appellant’s Brief at 18.

      In his final issue, Appellant claims Attorney Moore was not authorized

to waive, on his behalf, advisement of his Miranda rights. Appellant reasons

“[t]here was no intelligent and voluntary waiver of his Miranda rights since

he was not informed of them.” Appellant’s Brief at 19. We conclude no relief

is due.

      We note the relevant standard of review:

      In reviewing a suppression ruling, this Court is bound by the lower
      court’s factual findings that find support in the record but we are
      not bound by the court’s conclusions of law. The determination of
      whether a confession is voluntary is a conclusion of law and, as
      such, is subject to plenary review.

Templin, 795 A.2d at 961 (citations omitted).

      We consider, as did the prior panel of this Court on appeal, that

“regardless of whether the challenged statement was obtained in violation of

Miranda, it would not be subject to suppression [when] admitted for the

limited purpose of impeaching [a defendant’s] testimony.” See Busanet, 54

A.3d at 59, citing PA. CONST. Art. 1, § 9 (“use of a suppressed . . . voluntary


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confession to impeach the credibility of a person may be permitted and shall

not be construed as compelling a person to give evidence against himself”);

Harris v. New York, 401 U.S. 222, 225-26 (1971) (prosecution may impeach

testifying criminal defendant with voluntary statements police obtained in

violation of Miranda); Commonwealth v. Baxter, 532 A.2d 1177, 1178 (Pa.

Super. 1987) (holding use of voluntary confession for impeachment is not

violation of Pennsylvania Constitution or Fifth Amendment to United States

Constitution).

      The voluntariness of a confession is determined by considering the

totality of the circumstances. Templin, 795 A.2d at 963-64. Our Supreme

“Court has applied the totality of circumstances test with no less force or vigor

in cases where there was a claim that a promise or inducement rendered the

confession involuntary.” Id.

      In determining voluntariness, the question “is not whether the
      defendant would have confessed without interrogation, but
      whether the interrogation was so manipulative or coercive
      that it deprived the defendant of his ability to make a free
      and unconstrained decision to confess.” “By the same token,
      the law does not require the coddling of those accused of crime.
      One such need not be protected against his own innate desire to
      unburden himself.” Factors to be considered in assessing the
      totality of the circumstances include “the duration and means of
      the interrogation; the physical and psychological state of the
      accused; the conditions attendant to the detention; the attitude
      of the interrogator; and any and all other factors that could drain
      a person’s ability to withstand suggestion and coercion.”

Id. at 966 (citations omitted and emphasis added).




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       Preliminarily, we note Appellant’s Miranda claim — that he was not

advised of his rights and Attorney Moore was not authorized to waive them on

his behalf — is misplaced.        We emphasize the trial court suppressed the

statement, but ruled the Commonwealth could present it for impeachment

purposes if Appellant gave any testimony inconsistent with the statement. 12

See N.T., 1/17/17, at 22.            Appellant wholly ignores this Court’s prior

memorandum, which determined the trial court’s ruling was proper so long as

Appellant’s statement was voluntary. See Beard, 808 WDA 2017 (unpub.

memo.) at 18-19; see also PA. CONST. Art. 1, § 9; Busanet, 54 A.3d at 59.

In this regard, we review the trial court’s post-remand finding that the

statement was voluntarily given.

       The trial court considered Appellant’s testimony that he did not want to

give a statement and that he was not aware he was going to the police station

until prison officials informed him. N.T., 6/27/19, at 66. Nevertheless, the

court noted Appellant and Attorney Moore “had plenty of time to converse”

prior to the statement, and indeed “most of” Appellant’s 45 minutes at the

police department “was spent . . . in consult with his attorney.” Id. at 63.

The court also found the following: although Appellant stated he was “stressed

out,” “Detective Lorah noticed nothing unusual about his physical or



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12 Furthermore, as stated above, the Commonwealth clearly informed the
court it did not intend to present the statement in its case in chief. N.T.,
1/17/17, at 17.

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psychological state.” Id. No promises were made to Appellant, and the ADA

conveyed to Appellant “that there would be no promises [or] guarantees.” Id.

at 64. The court concluded:

      There was no evidence . . . that [Appellant] didn’t have an ability
      to withstand any questioning or suggestions or coercion by
      Detective Lorah, but I must note also, in fact, there were no
      suggestions or coercions by Detective Lorah, because he really
      asked no questions at all of [Appellant]. He simply allowed
      [Appellant] to give his statement and that is what did happen.

Id. at 64.

      Appellant does not dispute these findings of fact and, in any event, we

are bound by them. See Templin, 795 A.2d at 961. Appellant’s claims —

that he was wrongly promised his statement would not be used against him

at trial and thus “did not make an informed decision to make a statement,”

and that he “was lulled into making a statement” — are not focused on the

proper inquiry for voluntariness. See Templin, 795 A.2d at 966; Appellant’s

Brief at 13. Instead, the trial court properly considered “not whether [he]

would have confessed without interrogation, but whether the interrogation

was so manipulative or coercive that it deprived [Appellant] of his ability to

make a free and unconstrained decision to confess.” See Templin, 795 A.2d

at 966 (emphasis added). The certified record supports the court’s findings,

and thus we do not disturb its conclusion that Appellant’s statement was

voluntarily given. See id.

      Accordingly, we further hold the trial court properly ruled the statement

was admissible for impeachment purposes.        See PA. CONST. Art. 1, § 9 ;

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Busanet, 54 A.3d at 59; Baxter, 532 A.2d at 1178. In this regard, no relief

is due on Appellant’s claim that the trial court’s improper ruling affected his

decision not to testify at trial.

      In light of the foregoing, we do not disturb the trial court’s finding that

Appellant’s June 23, 2016, statement was not admissible at trial but could be

introduced for impeachment purposes if Appellant testified inconsistently to

the statement. We thus affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2020




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