J-A32007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                              Appellee

                       v.

ANTHONY J. SCHOLL, JR.,

                              Appellant                      No. 1337 WDA 2014


             Appeal from the Judgment of Sentence July 17, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0004828-2013


BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED DECEMBER 31, 2015

     Appellant, Anthony J. Scholl, Jr., appeals from the judgment of

sentence     imposed        following    his   convictions   of   attempted   homicide,

aggravated assault, and recklessly endangering another person (“REAP”).

We affirm.

     The trial court summarized the underlying facts of this case as follows:

           On September 5, 2012, at approximately 10:30 P.M., Colin
     Albright rode his bicycle from the Squirrel Hill section of the City
     of Pittsburgh to the South Side section of the city. As he
     traveled along Hot Metal Street, Albright exited the bike path
     and entered the roadway in front of Appellant’s vehicle.
     Albright’s actions apparently offended Appellant who was driving
     his vehicle on Hot Metal Street.         Consequently, Appellant
     followed Albright as he made his way to a set of city steps which
     led from Harcum Way to Josephine Street. Albright began to
     ascend the steps towards his home, which was on Josephine
     Street, carrying his bicycle over his shoulder. Appellant parked
     his vehicle and ran up the stairs to confront Appellant. (T.T.(I)
     38, 40-41, 43; T.T.(II) 39-40, 42, 174-176).4
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           4
              The designation “T.T.(I)” followed by numerals
           refers to Trial Transcript, March 3, 2014.    The
           designation “T.T.(II)” refers to Trial Transcript,
           March 3-5, 2014.

            When Albright heard Appellant approaching from behind,
     Albright moved out of the way to allow Appellant to pass him on
     the stairs.     Instead, Appellant stopped and began to stab
     Albright in the back of the head and shoulder.              Albright,
     believing he was being robbed, told Appellant that he could take
     the bicycle. Appellant grabbed Albright by the top of the head,
     and slit Albright’s throat lengthwise, from ear to ear. At the
     same time, Albright pushed the bicycle towards Appellant, who
     took the bicycle, ran down the steps, threw the bicycle over the
     railing, and fled in his car. (T.T.(I) 43-46; T.T.(II) 50).

           Albright immediately called 911 and wrapped his shirt
     around his neck in an attempt to stop the bleeding. The 911
     dispatcher was unable to ascertain Albright’s location without a
     street address, so Albright made his way to the Birmingham
     Bridge Tavern, which was approximately four blocks away, to
     await assistance. (T.T.(I) 46-52; T.T.(II) 31-32, 43). Albright
     was emergently transported to the hospital where he remained
     for approximately five days. Appellant had severed Albright’s
     external jugular vein and several other arteries in his neck.
     Albright received twenty-one sutures in his neck and fifteen
     staples for the stab wounds to his head. At the time of trial,
     Albright was still undergoing physical therapy and had significant
     and permanent scarring to his head, shoulder, and neck.
     (T.T.(I) 33, 53-56; T.T.(II) 7, 11, 14, 17).

            Albright assisted the police in creating a composite sketch
     of his attacker.       (T.T.(II) 17, 108-112).       Upon further
     investigation and tips received from the public, Appellant was
     identified as a suspect. Albright identified Appellant from a
     photo array as being very similar to the individual who attacked
     him, and Appellant confessed to the attack during a subsequent
     interview. (T.T.(II) 23, 167-180, 200).

Trial Court Opinion, 1/15/15, at 8-10.




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       In a criminal information dated October 25, 2012, and filed on June

11, 2013, Appellant was charged with the crimes of criminal attempt

(homicide), aggravated assault – serious bodily injury, and REAP. On July 9,

2013, Appellant filed an omnibus pretrial motion seeking to suppress his

confession and statements to police, and his identification. The suppression

court held a hearing December 2 through December 3, 2013. In an order

dated December 29, 2013, the suppression court denied the motion to

suppress.1

       On March 5, 2014, a jury convicted Appellant of the three crimes

stated above. On July 17, 2014, the trial court sentenced Appellant to serve

a term of incarceration of seven to fourteen years, to be followed by a term

of probation of five years for the conviction of attempted homicide. For the

crime of REAP, the trial court sentenced Appellant to serve a consecutive

term of probation of two years. This timely appeal followed. Both Appellant

and the trial court have complied with Pa.R.A.P. 1925.2

       Appellant presents the following issues for our review:

       I. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO
       SUPPRESS INSOFAR AS [APPELLANT’S] CONFESSION WAS THE
____________________________________________


1
 We observe that the December 29, 2013 order of the suppression court
was filed, along with the suppression court’s opinion, on January 8, 2015.
Docket Number 22.
2
  We note that Judge Jeffrey A. Manning presided over Appellant’s motion to
suppress and that Judge Edward J. Borkowski presided at Appellant’s jury
trial.



                                           -3-
J-A32007-15


        FRUIT OF AN ILLEGAL ARREST BECAUSE THE POLICE HAD NO
        REASONABLE SUSPICION OR PROBABLE CAUSE AT THE TIME
        THEY HANDCUFFED HIM, PLACED HIM IN LEG-IRONS AND
        TRANSPORTED HIM FROM THE COUNTY JAIL TO THE HOMICIDE
        OFFICE TO BE INTERVIEWED?

        II. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO
        SUPPRESS INSOFAR AS [APPELLANT’S] RIGHT TO COUNSEL
        UNDER THE FIFTH AMENDMENT AND ARTICLE 1, § 9 OF THE
        PENNSYLVANIA CONSTITUTION, WAS VIOLATED WHERE HE HAD
        OBTAINED COUNSEL FOR AN EARLIER, UNRELATED OFFENSE,
        AND THE POLICE SUBSEQUENTLY INITIATED INTERROGATION
        REGARDING THE INSTANT OFFENSE WITHOUT THE PRESENCE
        OF COUNSEL; AND HIS PURPORTED WAIVER OF COUNSEL
        AFTER BEING GIVEN MIRANDA WARNINGS,[3] WAS INVALID?

        III. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO
        SUPPRESS INSOFAR AS [APPELLANT] DID NOT KNOWINGLY AND
        VOLUNTARILY WAIVE HIS MIRANDA RIGHTS BECAUSE HE
        SUFFERED FROM MENTAL ILLNESS AND WAS SUBJECTED TO
        COERCIVE TACTICS?

        IV. DID THE TRIAL COURT ERR IN RULING THAT THE
        TESTIMONY OF WITNESSES WHO WOULD HAVE SUPPORTED
        [APPELLANT’S]  CLAIM   THAT    HIS   STATEMENT WAS
        INVOLUNTARY, WAS INADMISSIBLE AT TRIAL?

Appellant’s Brief at 5.

        In his first three issues, Appellant argues that his motion to suppress

his statement to the police was improperly denied.         With respect to an

appeal from the denial of a motion to suppress, our Supreme Court has

stated the following:

        Our standard of review in addressing a challenge to a trial
        court’s denial of a suppression motion is whether the factual
____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).




                                           -4-
J-A32007-15


       findings are supported by the record and whether the legal
       conclusions drawn from those facts are correct. When reviewing
       the ruling of a 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. . . . 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.

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 their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006).4

       Further, we are aware that Pa.R.Crim.P., which addresses the

suppression of evidence, provides in relevant part as follows:

       (H) The Commonwealth shall have the burden . . . of
       establishing that the challenged evidence was not obtained in
       violation of the defendant’s rights.
____________________________________________


4
   On October 30, 2013, our Supreme Court decided In re L.J. In L.J., our
Supreme Court held that our scope of review from a suppression ruling is
limited to the evidentiary record that was created at the suppression
hearing. In re L.J., 79 A.3d at 1087. Prior to L.J., this Court routinely held
that, when reviewing a suppression court’s ruling, our scope of review
included “the evidence presented both at the suppression hearing and at
trial.” Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super. 2011)
(quoting Commonwealth v. Chacko, 459 A.2d 311 (Pa. 1983)). L.J. thus
narrowed our scope of review of suppression court rulings to the evidence
presented at the suppression hearing. In this case, Appellant’s suppression
hearing was held after L.J. was decided. Therefore, we will apply the rule
announced in L.J. to the case at bar. See L.J., 79 A.3d at 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”).



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Pa.R.Crim.P. 581(H).

      Initially, Appellant claims that his confession was the fruit of an illegal

arrest because the police lacked probable cause when they handcuffed him

and took him from the county jail, where he was incarcerated on unrelated

charges, to the homicide office to be interviewed regarding the instant

crimes.    Appellant’s Brief at 27-30.   Basically, Appellant contends that his

transportation to the homicide office amounted to the functional equivalent

of an arrest, which required the police to possess probable cause.

             The Fourth Amendment to the United States Constitution
      and Article I, Section 8 of the Pennsylvania Constitution protect
      individuals from unreasonable searches and seizures, thereby
      ensuring the “right of each individual to be let alone.”
      Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
      854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
      Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002). However,

as explained below, police are not required to possess probable cause in

order to transport a prisoner from jail to a police station to be interviewed in

connection with another crime, and prisoners are not arrested under these

circumstances because they are, by virtue of their pre-existing incarceration,

already validly within state custody. Our Supreme Court analyzed this issue

in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that the

transfer of a defendant from jail to the offices of a criminal investigation

division

      did not implicate appellant’s rights under the Fourth
      Amendment. At the time appellant was moved . . . , he was

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J-A32007-15


       already a prisoner serving time on unrelated charges; he was
       already unquestionably “seized” for purposes of the Fourth
       Amendment. The only change in appellant’s status . . . was the
       location of his custody. The transfer from jail to the . . . offices
       . . . did not constitute a separate seizure of appellant under the
       Fourth Amendment for the obvious reason that he was already
       lawfully in custody.

Id. at 846. See also Commonwealth v. Watkins, 750 A.2d 308, 314 (Pa.

Super. 2000) (stating that “[d]ue to the administrative nature of the

transport process used by the police herein and the fact that prisoners’

Fourth Amendment rights are not coextensive with those of free citizens, we

decline   to   require    police   officers    to   possess   probable   cause   when

transporting prisoners to police stations for custodial interrogation.”).

       In concluding that Appellant’s motion to suppress based upon an

alleged illegal arrest or detention lacked merit, the suppression court

concluded that “[t]he facts in this matter are nearly identical [to the facts in

Watkins] and require the same result.”                  Suppression Court Opinion,

1/29/13, at 11. Likewise, the trial court offered the following apt discussion

with regard to this issue:

             Appellant first argues that his statement should have been
       suppressed because he was illegally detained. Appellant was
       housed in the Allegheny County Jail on unrelated charges. On
       October 25, 2012, detectives from the homicide office
       transported him to their office to be interviewed about the
       stabbing of Albright. (M.T. 8, 81).[5] However, contrary to
       Appellant’s argument that this situation resulted in the arrest of
____________________________________________


5
 The citation “M.T.” refers to the notes of testimony from the suppression
hearing transcript of December 2-3, 2013.



                                           -7-
J-A32007-15


     Appellant for the instant offense, the transportation order was
     merely the procedural means used to interview an incarcerated
     suspect. (M.T. 8, 81). Appellant was not arrested for the
     stabbing of Albright at the time of his interview, and he was free
     to request that the interview be terminated and that he be
     returned to the jail at any time, which he chose not to do. (M.T.
     82-83, 85). Thus while Appellant was in custody on unrelated
     charges, he was free to terminate the contact with the homicide
     detectives on this case. Appellant was not illegally detained
     under the United States or Pennsylvania constitutions, and [the
     suppression court’s] decision to deny the suppression is
     supported by the record. See Commonwealth v. Watkins,
     750 A.2d 308, 313-314 (Pa. Super. 2000) (defendant who was
     transported from jail to police station on unrelated charges was
     not arrested as a result of the transportation order, and
     statement was found to be voluntary where defendant read and
     waived his Miranda rights and did not assert any physical or
     psychological misconduct or intimidation by the police).
     Appellant’s claim is without merit.

Trial Court Opinion, 1/15/15, at 12-13.

     Our review of the record reflects that the transportation process

employed in this matter was routine, the process was effectuated by a court

order, Appellant was not coerced into speaking with police about the instant

crime, and he was Mirandized prior to questioning.       Thus, we conclude

Appellant’s claim that the police were required to possess probable cause to

transport Appellant from the county jail to another police facility for

questioning lacks merit.

     In his second issue, Appellant argues that his motion to suppress

should have been granted based upon an allegation that his constitutional

right to counsel was violated.    Appellant’s Brief at 30-37.    Specifically,

Appellant claims that his right to counsel under the Fifth Amendment to the


                                    -8-
J-A32007-15


United States Constitution and Article 1, § 9 of the Pennsylvania Constitution

was violated because he had counsel for an unrelated offense, and the police

initiated an interrogation on the instant crimes without the presence of

counsel.

       At the outset, we observe that in Commonwealth v. Arroyo, 723

A.2d 162 (Pa. 1999), our Supreme Court reviewed the differences between

the Fifth Amendment Miranda rights6 and the Sixth Amendment “right to

counsel” as set forth by the United States Supreme Court in Moran v.

Burbine, 475 U.S. 412 (1986). Our Supreme Court summarized as follows:

       The [United States Supreme] Court noted that the “right to
       counsel” of which Miranda warnings inform a suspect does not
       spring from the Sixth Amendment right to counsel, but rather is
       a judicially created procedural device by which the suspect’s
       Fifth Amendment privilege against self-incrimination is
       protected. The Court explained that the Sixth Amendment right
       to counsel is distinct from the right to counsel mentioned in a
       Miranda warning. A suspect has a right to be told his Miranda
       warnings at the point custodial interrogation begins. The Sixth
       Amendment right to counsel, on the other hand, by its very
       terms . . . becomes applicable only when the government’s role
____________________________________________


6
  In Miranda, the Supreme Court set forth safeguards to protect a person’s
rights under the Fifth Amendment to the United States Constitution which
provides that a criminal defendant cannot be compelled to be a witness or
give evidence against himself. Miranda, 384 U.S. at 461. The Court held
that any statements or confessions made during a custodial interrogation
must be suppressed unless, prior to making such statements, the individual
was informed of his right to remain silent and right to an attorney and made
a knowing, intelligent and voluntary waiver of those rights. Id. at 444. For
a waiver of these rights to be valid, the defendant must be adequately
apprised of and understand his rights and the consequences of waiving those
rights, and must not be threatened, forced, or coerced to waive his rights in
any way. Commonwealth v. DeJesus, 787 A.2d 394, 402 (Pa. 2001).



                                           -9-
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      shifts from investigation to accusation. Therefore, a suspect
      has no Sixth Amendment right to counsel until the first
      formal charging proceeding has transpired, and it can be
      said that the formal initiation of adversarial judicial
      proceedings has occurred. The Court concluded that since
      the inculpatory statements at issue in Moran were given prior to
      the defendant being charged with the crime, then the defendant
      had no Sixth Amendment right which could be violated. The
      Court also specifically declined the defendant’s invitation to
      extend the protections of the Sixth Amendment to the
      prearraignment phase of proceedings as such a holding would
      not be consistent with the Sixth Amendment’s purpose of
      protecting an individual who is the focus of the state’s
      prosecutorial power.

Arroyo, 723 A.2d at 166 (quotation marks and citations omitted) (emphasis

added).

      In Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012), our

Supreme Court further summarized the Sixth Amendment right to counsel

and its limits as follows:

            The Sixth Amendment right to counsel is offense-specific;
      it cannot be invoked once for all future prosecutions, and it only
      attaches at the commencement of prosecution, i.e., when
      criminal proceedings are initiated by charge, preliminary hearing,
      indictment, information, or arraignment. Once the right has
      attached at the initiation of proceedings for a specific offense,
      the defendant may not be questioned further regarding that
      offense without counsel present; the right’s purpose is to protect
      the unaided layman at critical confrontations with his expert
      adversary, the government, after the adverse positions of
      government and defendant have solidified with respect to a
      particular alleged crime. However, a defendant whose Sixth
      Amendment right to counsel has attached regarding one
      offense may be questioned about other offenses for which
      prosecution has not commenced, and statements made
      regarding other offenses are admissible in a trial for
      them.

Id. at 1065 (citations and quotations omitted) (emphasis added).

                                    - 10 -
J-A32007-15


       In Arroyo, our Supreme Court stated that “the right to counsel, as

guaranteed by Article I, Section 9 of the Pennsylvania Constitution, is

coterminous with the Sixth Amendment right to counsel for purposes of

determining when the right attaches.” Arroyo, 723 A.2d at 170. Here, to

the extent that Appellant alleges that his right to counsel under Article I,

Section 9 of the Pennsylvania Constitution, and thus his Sixth Amendment

right to counsel, were violated, we conclude that because adversarial

proceedings had not been commenced in the instant action at the time that

Appellant was interviewed about the crime, the right to counsel had not yet

attached, and questioning about the instant offense was permissible.

Therefore, Appellant’s assertion that his right to counsel under Article I,

Section 9 of the Pennsylvania Constitution was violated fails.

       We next address Appellant’s claim that the waiver of his Miranda

rights was invalid.7        In essence, Appellant claims that questioning of

Appellant on the instant matter should not have occurred because police

were aware that Appellant was represented by counsel and knew that

counsel did not want Appellant to speak without counsel present.

       In Commonwealth v. Rushing, 71 A.3d 939 (Pa. Super. 2013),

reversed on other grounds, 99 A.3d 416 (Pa. 2014), we reiterated that “the
____________________________________________


7
  We note that in Arroyo, our Supreme Court reasoned that the privilege
against self-incrimination under the Pennsylvania Constitution, found in
Article I, § 9, affords the same protection as its corresponding federal
provision, the Fifth Amendment. Arroyo, 723 A.3d at 166-167.



                                          - 11 -
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Fifth Amendment right to counsel is a personal right which can only be

invoked by the person holding that right.         Accordingly, whether an

attorney physically appears in an attempt to represent the accused does not

alter the fact that it is the accused who must invoke his Fifth

Amendment right to counsel.” Id. at 951 (emphases added). See also

Keaton, 45 A.3d at 1067 (observing that Fifth Amendment rights apply only

when the suspect has expressed his wish for the particular sort of lawyerly

assistance that is the subject of Miranda). Therefore, it is only Appellant

who could invoke his Miranda rights.

     In addressing Appellant’s waiver of his Miranda rights prior to

interrogation, the suppression court made the following well-reasoned

conclusion:

           Here, [Appellant] was in custody when interrogated, but
     he was advised of his [Miranda] rights and executed a waiver of
     those rights. [Appellant] was warned, orally and in writing, of
     the consequences of agreeing to speak with the police without
     the presence of his attorney. [Appellant] was told that he had
     the right to refuse to speak with them or to consult with an
     attorney before making that decision.        [Appellant] chose,
     according to the credible evidence presented at this hearing, to
     waive those rights and give a voluntary statement to the police.

            Counsel’s attempt to invoke these rights for [Appellant]
     was also ineffective. . . . Counsel’s phone call to [a City of
     Pittsburgh police detective] did not invoke [Appellant’s] right;
     only [Appellant] was capable of doing that. [Appellant] was
     given the opportunity to do so, but, instead, chose to waive his
     right to counsel and speak with the detectives.

Suppression Court Opinion, 12/29/13, at 13-14.




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J-A32007-15


      Upon review of the record before us, we discern no error which would

compel      us   to   reverse   the   determination   of   the   suppression   court.

Accordingly, we conclude that Appellant’s claim lacks merit.

      In his third issue, Appellant continues his argument that the

suppression court erred in failing to grant his motion to suppress his

statements to police.       Appellant’s Brief at 37-40.      Specifically, Appellant

contends that the waiver of his Miranda rights was not knowing and

voluntary because he suffered from mental illness and was subjected to

coercive police tactics.

      As noted, under Miranda, police officers are required to inform a

suspect prior to questioning that he has the right to remain silent, that any

statement made may be used against him, and that he has the right to an

attorney.        Miranda, 384 U.S. at 444.            “The defendant may waive

effectuation of these rights, provided the waiver is made voluntarily,

knowingly and intelligently.”         Id.    “It is the Commonwealth’s burden to

establish whether [the accused] knowingly and voluntarily waived his

Miranda rights. In order to do so, the Commonwealth must demonstrate

that the proper warnings were given, and that the accused manifested an

understanding of these warnings.” Eichinger, 915 A.2d at 1135-1136.

      In order to determine if a proper waiver of Miranda rights has

occurred, the following test is employed:

      The voluntariness standard of Miranda requires that the
      prosecution prove by a preponderance of the evidence that the

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J-A32007-15


     waiver is knowing and intelligent. This requires a two-step
     analysis. First, the waiver must have been voluntary in the
     sense that it was an intentional choice made without any undue
     governmental pressure; and, second, that the waiver must have
     been made with a full comprehension of both the nature of the
     right being abandoned and the consequences of that choice. We
     employ a totality of circumstances test in reviewing the waiver.
     We are bound also by the suppression court’s findings of fact if
     they are supported by competent evidence.

Commonwealth v. Logan, 549 A.2d 531, 537 (Pa. 1988) (citation

omitted).

     In Logan, “[t]he [a]ppellant was convicted by a jury of . . . first-

degree murder and possession of an instrument of crime for axing to death a

stranger on a public bus containing five other passengers.”        Id. at 534.

After the appellant was apprehended and taken to the police station, he was

read his Miranda warnings, waived those rights, confessed to committing

the killing, and was charged with first-degree murder. Id. at 535. Following

his arrest and during his trial, the appellant was confined to a mental

hospital. Id. He had also been institutionalized for mental illness prior to

committing the murder. Id.

     Before trial, the appellant filed a motion to suppress his confession,

arguing that his    mental illness prohibited him from knowingly and

intelligently waiving his Miranda rights.   Id.   The trial court denied the

motion, a jury ultimately convicted the appellant of first-degree murder, and

he was sentenced to death. Id. Our Supreme Court summarized the facts

surrounding the appellant’s waiver of Miranda rights as follows:


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     Uncontested police testimony shows that the [a]ppellant was
     taken to the interview room of the Police Administration Building
     where he was read Miranda rights from the Standard Police
     Interrogation Card. [The] [a]ppellant orally indicated at that
     time that he understood each warning and even asked for
     clarifications. He then gave a confession which was written out
     by the interviewing officer who reduced it to typewritten form.
     [The] [a]ppellant read his typed confession aloud into a tape
     recorder and signed each page. Prior to giving this confession,
     he was advised again of the Miranda rights. The [a]ppellant
     apprised the interviewing officer of the fact that he could read
     and write English because he had gone to the eleventh grade in
     school. He also denied any recent use of drugs except for a
     “reefer” which he had smoked several days before the crime.
     There was no evidence that the [a]ppellant had been coerced or
     induced by the police into making the confession.

Logan, 549 A.2d at 536–537.

     In analyzing whether the circumstances confirmed that the appellant’s

waiver of his Miranda rights was voluntary and intelligent, our Supreme

Court emphasized “that defendants with proven psychological defects are

capable indeed of waiving their constitutional rights and giving voluntary

confessions.”   Logan, 549 A.2d at 537 (citations omitted).     The Logan

Court then assessed the voluntariness of the appellant’s confession under

the two-prong standard.      Id.   Ultimately, the Court concluded that,

regardless of the appellant’s mental illness, the circumstances of his

confession revealed that the waiver was “the product of free, unconstrained,

and rational choice of its maker.” Id. The Court in Logan determined that

the evidence demonstrated the appellant “was aware of the nature of the

right which he was surrendering and of the consequences of that choice.”

Id. at 537-538. See also Commonwealth v. Bracey, 461 A.2d 775, 782

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n.7 (Pa. 1983) (stating that “a person with a mental illness including a

history of hallucinations and delusions may be capable of waiving her

constitutional rights”).

        Here, the suppression court made the following relevant findings of

fact:

        3. On October 9, 2012, [Appellant] was alleged to have set the
        porch to his parent’s house on fire. Although he was eventually
        charged with one count of Arson, one count of Risking a
        Catastrophe and two counts of Recklessly Endangering Another
        Person as a result of that, those charges were not filed until
        October 19, 2012.2      On October 9, [Appellant] voluntarily
        committed himself to Jefferson Regional Medical Center’s
        psychiatric ward, where he remained until discharge on October
        19, 2012.
             2
               Those charges were withdrawn at the November
             11, 2012 preliminary hearing.

        4. The Jefferson records reported that [Appellant] suffered from
        homicidal ideation concerning his parents and experienced
        command auditory hallucinations. At discharge, he was still
        noted to have a depressed mood, but no psychotic thinking and
        denied any homicidal or suicidal ideation. He was directed to
        follow up with outpatient care and had an appointment
        scheduled for October 25, 2012. (Exhibit A).

        5. After his discharge from Jefferson, he was charged with the
        arson offenses and remanded to the County Jail as he was
        unable to post bail.

                                     ***

        13. On October 25, 2012, in the morning, Detectives Bolin and
        McGee obtained a Court Order permitting them to transport
        [Appellant] to their office to be interrogated.    (N.T. 81).
        Detective McGee stated that during his interview, [Appellant]
        seemed responsive to his questions and that there was nothing
        out of the ordinary about his demeanor as he was speaking with
        them. (N.T. 9).

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     14. When [Appellant] was told that they wanted to talk to him
     about a stabbing on the South Side, [Appellant] initially denied
     any knowledge. At this point, Detective McGee suggested to
     [Appellant] that they call his mother and have her come out and
     sit down and talk with him. According to Detective McGee,
     [Appellant] thought that was a good idea and [Appellant’s]
     mother was called. (N.T. 9).

     15. [Appellant’s mother] arrived at approximately 12:30 p.m.
     and met with her son for approximately 35 to 40 minutes. She
     then came out of the room and told the detective that
     [Appellant] wanted to tell them what had happened that night.
     (N.T. 10).

     16. Detective McGee, prior to resuming his discussion with
     [Appellant], informed him of his Miranda Rights by reading to
     him from a Pittsburgh Police Miranda Rights form. That form
     was admitted as Commonwealth Exhibit 1.              It bears the
     signatures of Detective McGee, [Appellant] and [Appellant’s
     mother]. The detective read the questions out loud and then
     recorded [Appellant’s] answers. He then handed the form to
     [Appellant] for his review. He observed as [Appellant], and then
     [Appellant’s] mother, Patricia Arlett, signed the form. (N.T. 11).

                                   ***

     23. [Appellant] was evaluated at the Court’s Behavior
     Assessment Unit and report was issued on October 30, 2012. He
     was deemed incompetent to stand trial because his psychiatric
     symptoms were significant barriers in cooperating with his
     attorney. [Appellant] did, however, have a factual and rational
     understanding of the charges against him. (Court Exhibit 1 A).

     24. [Appellant] was reevaluated by the Behavior Assessment
     Unit on November 12. He was still deemed incompetent on the
     same basis.       It was recommended that [Appellant] be
     transferred to Torrance State Hospital. (Court Exhibit 1 B).

     25. The forensic summary from Torrance stated that [Appellant]
     was “....suspicious, paranoid towards others and responding to
     voices most likely. He has poor insight, poor judgment and poor
     impulse control.” (Exhibit B). [Appellant’s] diagnoses were:
     “Psychosis, not otherwise specified”; “Bipolar Disorder, not

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     otherwise specified” and “Marijuana Abuse, in Remission
     Secondary to Controlled Environment” at Axis I and “Antisocial
     Personality Disorder” at Axis II. (Exhibit B).

Suppression Court Opinion, 12/29/13, at 3-10.

     In concluding that Appellant voluntarily waived his Miranda rights, the

suppression court offered the following thoughtful analysis, which we adopt:

     [Appellant] contends that his statement was not voluntary
     because he was not competent to waive his rights as a result of
     mental illness.     This claim has given this Court the most
     difficulty. There can be no dispute that [Appellant] suffered, at
     the time of his interrogation, from severe mental illness. There
     are psychiatric records from before and after the date he gave
     his statement which reveal that [Appellant] suffers from
     psychosis and bipolar disorder. They further reveal that he
     experienced auditory hallucinations, homicidal and suicidal
     ideation.     He was determined by this Court’s behavior
     assessment unit to be incompetent five days after he provided
     his statement to the police.        Those records reveal that
     [Appellant] stopped taking the medications that had been
     prescribed at Jefferson and which greatly improved his mental
     health upon his discharge on the 19th. He did not resume taking
     them until October 27, which means that when he was taken to
     the homicide unit on the 25th, he had been off of his medication
     for at least 6 days.

                                   ***

           Here, there is evidence that a few days after his
     statement, [Appellant] was not competent. Clearly, he suffered
     from mental illness. The record does not establish, however,
     that that illness prevented him from fully understanding his
     rights and voluntarily waiving those rights on October 25, 2012.
     The only evidence on the record concerning [Appellant’s]
     condition that day is the testimony from those who were with
     him around the time he gave his statement; Detectives McGee
     and Bolin and [Appellant’s] mother. None of them testified as
     to any apparent difficulty [Appellant] was having that day
     understanding his rights and interacting appropriately with the
     detectives. His mother was asked if she told him not to talk to
     the police because she thought he did not know what was going

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      and she responded, “No.” (N.T. 76). When asked if she had any
      concerns about his ability to understand what was going on and
      she responded, “I don’t know. I mean, I did, but I wasn’t sure.
      Like I said, I was scared.” (N.T. 76).

            In the absence of testimony from an expert stating that, at
      the time [Appellant] gave his statement he was unable, due to
      mental illness, to knowingly and voluntarily waive those rights,
      this Court is constrained to conclude that [Appellant’s] waiver
      was knowing, intelligent and voluntary.        While the records
      offered established that the defendant is mentally ill, they did
      not establish that his illness was such that he was not capable of
      giving a knowing, voluntary and intelligent waiver of his rights.
      Based on the evidence presented at the suppression hearing, the
      Court finds that the Commonwealth has met its burden, by the
      slimmest of margins, of establishing that [Appellant’s] Miranda
      waiver was knowing, intelligent and voluntary.

Suppression Court Opinion, 12/29/13, at 14-17.      Likewise, upon review of

the certified record, we conclude that, despite Appellant’s mental health

issues, he knowingly and intelligently waived his Miranda rights on October

25, 2012. Hence, we conclude that Appellant’s contrary claim lacks merit.

      In addition, Appellant contends that the waiver of his Miranda rights

and subsequent confession was not voluntary due to the alleged coercive

conduct of the police. Appellant alleges that the police offered to reduce the

charges filed against Appellant in exchange for a statement.       Appellant’s

Brief at 40.   However, upon review we conclude that this claim also lacks

merit.

      “The determination of whether a confession is voluntary is a conclusion

of law, and as such, is subject to plenary review.”      Commonwealth v.

Roberts, 969 A.2d 594, 599 (Pa. Super. 2009).             In evaluating the


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J-A32007-15


voluntariness of a confession, this Court looks at the totality of the

circumstances to determine whether, because of police conduct, the

defendant’s “will has been overborne and his capacity for self-determination

critically impaired.” Id. at 598-599 (citation omitted).

      Here, the suppression court made the following finding of fact with

regard to whether the police promised Appellant a reduction in charges in

order to coerce a confession:

      18. [Appellant’s] mother testified that she was promised
      that if [Appellant] gave a statement, the charges would be
      reduced to simple assault. She further claimed to only have
      talked to [Appellant] for a few minutes; that she was not present
      when [Appellant] was advised of his rights and that she thought
      the interrogation rights waiver form she signed was actually an
      agreement to reduce the charges. The Court does not find
      these assertions credible. The interrogation rights form, a
      single page form, states, in bold, capital letters across the top,
      “CITY OF PITTSBURGH BUREAU OF POLICE MIRANDA RIGHTS
      FORM.” (See Exhibit 1). The body of the form is in a series of
      questions. [Appellant’s mother’s] signature is directly below that
      last question and it is inconceivable that someone could mistake
      this form for anything other than what it is.

Suppression Court Opinion, 12/29/13, at 8 (emphases added). Our review

of the certified record reflects no evidence beyond the testimony of

Appellant’s mother that Appellant was induced into making a statement with

the claim that he would receive reduced charges. Accordingly, we are left to

conclude that the discredited statement from Appellant’s mother does not

support his allegation. Therefore, this claim lacks merit.

      Appellant’s final argument is that the trial court erred in failing to

admit into evidence testimony from Appellant’s previous attorney and a

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medical expert regarding whether Appellant’s made a voluntary confession

to the police about the present incident.         Appellant’s Brief at 41-43.

Specifically, Appellant contends that his proffered testimony from Attorney

Daniel Joyce concerning counsel’s request to police that Appellant not be

interviewed without counsel present, and from Doctor Christine Martone

regarding Appellant’s metal state at the time of his confession, was

admissible.

      We begin by noting that questions concerning the admissibility of

evidence lie within the sound discretion of the trial court, and we will not

reverse the court’s decision on such a question absent a clear abuse of

discretion. Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa. Super.

2005).   An abuse of discretion is not merely an error of judgment, but is

rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-

will or partiality, as shown by the evidence or the record. Commonwealth

v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001).

      Before any evidence is admissible in a criminal proceeding, it must be

competent and relevant.     Commonwealth v. Freidl, 834 A.2d 638, 641

(Pa. Super. 2003).

      Relevance is the threshold for admissibility of evidence.
      Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612
      (2008). Relevant evidence is “evidence having any tendency to
      make the existence of any fact that is of consequence to the
      determination of the action more probable or less probable than
      it would be without the evidence.” Pa.R.E. 401. “Evidence is

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J-A32007-15


      relevant if it logically tends to establish a material fact in the
      case, tends to make a fact at issue more or less probable or
      supports a reasonable inference or presumption regarding a
      material fact.” Commonwealth v. Drumheller, 570 Pa. 117,
      135, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919,
      123 S.Ct. 2284, 156 L.Ed.2d 137 (2003). “Evidence that is not
      relevant is not admissible.” Pa.R.E. 402. “Although relevant,
      evidence may be excluded if its probative value is outweighed by
      the danger of unfair prejudice, confusion of the issues, or
      misleading the jury, or by considerations of undue delay, waste
      of time, or needless presentation of cumulative evidence.”
      Pa.R.E. 403.

Commonwealth v. Williams, 48 A.3d 1265, 1268-1269 (Pa. Super. 2012).

      With regard to Appellant’s attempt to have Attorney Joyce testify that

he had informed police that he wanted to be present for any questioning of

Appellant, we fail to see how this matter was relevant as it does not tend to

establish the voluntary nature of Appellant’s statement to police.     As we

previously discussed, at the time Appellant was interviewed by police, he

was not charged with the instant crimes.        Therefore, Appellant’s Sixth

Amendment right to counsel had not attached. In addition, with regard to

Appellant’s Fifth Amendment rights, such rights could only be invoked by

Appellant.   As mentioned above, Appellant personally waived his rights by

signing a Miranda waiver form prior to making his statement to police.

Consequently, any discussion Attorney Joyce had with police prior to

Appellant being interviewed was not relevant as to the voluntary nature of

Appellant’s statements, and Appellant has failed to establish an abuse of

discretion. Hence, his contrary claim lacks merit.




                                    - 22 -
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      In addition, Appellant claims that the trial court erred in failing to

permit testimony from Dr. Martone concerning the nature of Appellant’s

mental illness and its effect upon Appellant’s cognitive functions. Appellant

wanted Dr. Martone to testify regarding the effects of Appellant’s mental

illness at the time of his statement to police, thereby attacking the voluntary

nature of Appellant’s statement.

      As with all other evidence, the admission of expert testimony is a

matter of discretion for the trial court and will not be remanded, overruled or

disturbed unless there was a clear abuse of discretion. Commonwealth v.

Brewer, 876 A.2d 1029, 1035 (Pa. Super. 2005). Again, a finding of abuse

of discretion may not be made “merely because an appellate court might

have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Commonwealth v. Laird, 988 A.2d

618, 636 (Pa. 2010) (quoting Commonwealth v. Sherwood, 982 A.2d

483, 495 (Pa. 2009)).

      Our review of the record reflects that Dr. Martone, as a member of the

the trial court’s behavior assessment unit, evaluated Appellant on two

occasions after he gave his statement to police on October 25, 2012. As the

suppression court states in its findings of fact:

      23.   [Appellant] was evaluated at the Court’s Behavior
      Assessment Unit and report was issued on October 30, 2012. He
      was deemed incompetent to stand trial because his psychiatric
      symptoms were significant barriers in cooperating with his

                                     - 23 -
J-A32007-15


      attorney. [Appellant] did, however, have a factual and rational
      understanding of the charges against him. (Court Exhibit 1 A).

      24. [Appellant] was reevaluated by the Behavior Assessment
      Unit on November 12. He was still deemed incompetent on the
      same basis. It was recommended that he be transferred to
      Torrance State Hospital. (Court Exhibit 1 B).

Suppression Court Opinion, 12/29/13, at 9.

      Completely lacking from the record, or from Appellant’s argument in

his appellate brief, is any indication that Appellant was evaluated just prior

to the time of his statement to police on October 25, 2012.       Rather, the

record establishes that on October 30, 2012, five days after giving his

statement to police, Appellant was evaluated and deemed incompetent to

stand trial. Accordingly, we conclude Appellant has failed to establish that

the trial court committed an abuse of discretion in declining to admit the

expert testimony at issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2015




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