J-S13005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

SHARON FLANAGAN,

                            Appellant                      No. 61 WDA 2014


     Appeal from the Judgment of Sentence Entered December 9, 2013
             In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010054-2012


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                              FILED APRIL 06, 2015

       Appellant, Sharon Flanagan, appeals from the life sentence imposed

following her conviction for first-degree murder.           She contends that her

statements to police should have been suppressed because they were made

while she was in police custody, without Miranda1 warnings, and after she

repeatedly asked for an attorney.              Appellant also argues that evidence

discovered on her computer should have been suppressed because the

computer was searched without probable cause.             Finally, Appellant asserts

that the evidence was insufficient to support her conviction.          After careful

review, we affirm.
____________________________________________


1
  Miranda v. Arizona, 384 U.S. 436 (1966) (holding that government may
not use inculpatory or exculpatory statements made by a defendant during a
custodial interrogation unless it demonstrates that the defendant was
apprised of her right against self-incrimination and her right to counsel).
J-S13005-15



     The trial court summarized the facts adduced at trial as follows:

        The charges arose out of the drowning death of [Appellant]'s
     two year old son, Steven. [Appellant] checked into Best Western
     Parkway Inn in Greentree on July 1, 2012[,] with her son,
     intending to take him to the Sandcastle Waterpark.
     Approximately two hours later she was seen first in the hallway
     of her sixth floor room and then in the lobby screaming about
     "her baby" and clutching her stomach. After a few minutes hotel
     security realized that she was referring to her child up in her
     room and they proceeded to the sixth floor. When it was
     determined that [Appellant] did not have her key, one was
     obtained from the desk and they gained entry to the room,
     accompanied by two other hotel guests who had responded to
     [Appellant]'s cries. One of those guests, Dominick Netti, noticed
     Steven lying face down in the bathtub, unconscious. He pulled
     him out and tried to revive him. Steven was dressed in a swim
     suit and crocs.     He was taken by ambulance to Children's
     Hospital where he died several days later.

          [Appellant] told one of the first officers on the scene,
     Greentree Police Lieutenant Robert Psomas[,] that she had
     allowed Steven to swim in the tub, filling it to about 10 to 12
     inches. She said she was in the room with him the entire time.
     She saw that he seemed to be having a problem and was
     beginning to panic. She said that she panicked too and tried to
     lift him from the water but claimed that she could not; that it felt
     as if something were holding him down. She left the bathroom
     to put on a back brace but, when she returned, still could not lift
     him. She said that she then pulled the plug and ran from the
     room to get help, eventually making it to the lobby.

        [Appellant] told essentially the same story to Allegheny
     County Homicide Detective Michael Feeney, who spoke with her
     at Children's Hospital, where Steven had been taken and was
     then clinging to life. She added that at one point he had been
     climbing on a towel rack and fell on his back and that he
     appeared to have his foot caught on something when she was
     trying to get him out of the tub. She also told Detective Feeney
     that when she returned after putting on what she described as a
     back brace, Steven was "lifeless." She said that at this time, she
     thought that she should drain the tub. She did so and the water
     began to drain from the tub but the drain became clogged with a
     wash cloth or a plastic item she said he was playing with. When

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     the water stopped draining, she told Detective Feeney that she
     still could not get Steven out of the tub and began to panic.
     Grabbing her keys and cell phone[, Appellant] ran from the
     room, stopping to ask a woman in the hallway to call 911 and
     then proceeding down to the front desk. She later said that she
     tried to call 911 from the room and, when he checked her cell
     phone, Detective Feeney noticed that the numbers "9911" were
     dialed at about 8:32 p.m., around the time of the incident. She
     agreed to execute a consent to search the hotel room, her car
     and her cell phone. During this interview, [Appellant] was asked
     if she wanted to see her son and she declined.

         Detective Feeney also secured security video from the hotel.
     The video shows [Appellant] arriving, carrying Steven in her
     arms as she walked across the hotel lobby. She appeared to
     have little difficulty carrying him or lifting him in the video. A
     latter portion of the video shows her emerging from the elevator
     at 8:33 p.m. and approach[ing] the front desk.

        [Appellant] spoke with detectives again the following day.
     Allegheny County Detective Stephen Hitchings approached her at
     the hotel and asked if she would agree to an interview at police
     headquarters. She said she would. When she entered the police
     vehicle, she asked if she "needed an attorney."         Detective
     Hitchings told her "no." During the drive to the police station,
     [Appellant] asked if she "could call a lawyer" and then said she
     wanted to "call a lawyer." The detective did not tell her that she
     could not contact an attorney. She was not under arrest at that
     time and was, according to the detective, free to refuse to
     answer any questions and to leave, if she wanted.

        During this interview[,] [Appellant stated] that earlier that
     year, between Christmas and March, she believed that her
     husband may have sexually abused their son. She fled with her
     son to Akron, Ohio[,] where Steven was examined at Akron
     Children's Hospital and no signs of abuse were detected.
     Although she returned home with her son, she and her husband
     separated and, according to her, the Court gave her husband
     70% custody. She had custody the weekend of July 1 and
     decided to take Steven to Pittsburgh to visit a water park. After
     checking in, she and Steven watched cartoons until Steven
     began to get restless. She dressed him in a bathing suit, put
     water in the tub and sat on the toilet while he played. Detective
     Hitchings recounted what she told him:


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        She said during the course of him playing, he's climbing in
        and out, climbing up on the bar in the tub, and at one
        point he fell, but she said he was fine and he continued
        playing, and then during that time she decided to put
        some of the shampoo that was provided by the hotel into
        the bath to make it a bubble bath. She said after doing
        that, she said she discovered him face down in the tub.

                                     …

        She stated she attempted to pull Steven from the tub but
        she was unable to do so, so she went out of the bathroom,
        got her back brace, came back in and again attempted to
        pull him from the tub but it felt as if something was pulling
        him towards the bottom. She stated she then attempted
        to let the water out of the tub but it seemed like it wasn't
        going out, so she went and grabbed her keys and her
        phone, and when she walked out of the room to get help,
        the door[] shut behind her, and her room key, little credit
        card key was still inside the room. She went to the front
        desk and alerted [hotel staff] to get help for him.

        At this time, Detective Hitchings determined that it was
     proper to provide [Appellant] with her pre-interrogation rights.
     He read those rights to her from the Allegheny County Police
     Rights Waiver form, [and] had her sign it. It was also signed by
     the detective and by his partner, Timothy Langani.          After
     [Appellant] executed the form, [D]etective Hitchings asked her
     several questions. She denied ever threatening to harm her son
     or that she attempted to drown him in the hotel tub. When
     asked why she could not pull him from the tub, she responded,
     "I don't know ... it felt like something was pulling him towards
     the bottom of the tub."

Trial Court Opinion (TCO), 8/21/2014, at 2-6 (citations and footnote

omitted).

     The Commonwealth filed a criminal information on August 23, 2013,

charging Appellant with criminal homicide, 18 Pa.C.S. 2501(a); aggravated

assault, 18 Pa.C.S. § 2701(a)(1); and endangering the welfare of children,

18 Pa.C.S. § 4304(a). Just prior to trial, the Commonwealth withdrew the


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charge of aggravated assault. Following a trial conducted on September 16-

20, 2013, a jury convicted Appellant of first-degree murder and endangering

the welfare of children.      On December 9, 2013, the trial court sentenced

Appellant to a mandatory term of life imprisonment for first-degree murder,

and a consecutive term of 2½-5 years’ incarceration for endangering the

welfare of children.       Appellant filed a timely notice of appeal from the

judgment of sentence.         Appellant also filed a timely Pa.R.A.P. 1925(b)

statement, and the trial court issued its Rule 1925(a) opinion on August 21,

2014.

        Appellant now presents the following questions for our review:

        I.    Should [Appellant]'s statements to police have been
        suppressed because they were made while in police custody,
        without the benefit of Miranda warnings, after she asked for an
        attorney?

        II.  Did the trial court err in failing to suppress the contents of
        … [A]ppellant's computer as the search warrant to obtain the
        computer was obtained without probable cause?

        III. Was the evidence insufficient to support a finding of
        First[-]Degree Murder?

Appellant’s Brief, at 7.

        Appellant’s first claim concerns the denial of her suppression motion

concerning the statements she made during an interrogation that occurred in

the police station on July 2, 2012, the day after the drowning.        Appellant

argues that her right to counsel was violated when she was questioned

during a custodial interrogation, despite having invoked her right to counsel.

The trial court agreed that Appellant attempted to invoke her right to


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J-S13005-15



counsel; however, it found that Appellant was not subject to a custodial

interrogation at the time when those attempts were made. Consequently,

the trial court denied Appellant’s motion to suppress her subsequent

statements.

             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
      rulings of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence for the
      defense as remains uncontradicted when read in the context of
      the record as a whole. Where the record supports the findings of
      the suppression court, we are bound by those facts and may
      reverse only if the legal conclusions drawn therefrom are in
      error.

In re D.M., 727 A.2d 556, 557 (Pa. 1999) (internal citations omitted).

      It is well-settled that:

      The prosecution may not use statements stemming from a
      custodial interrogation of a defendant unless it demonstrates
      that he was apprised of his right against self-incrimination and
      his right to counsel. Thus, Miranda warnings are necessary any
      time a defendant is subject to a custodial interrogation. As the
      United States Supreme Court explained, “the Miranda
      safeguards come into play whenever a person in custody is
      subjected to either express questioning or its functional
      equivalent.” Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct.
      1682, 64 L.Ed.2d 297 (1980). Moreover, in evaluating whether
      Miranda warnings were necessary, a court must consider the
      totality of the circumstances.

Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (some internal

citations omitted).




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      “Interrogation” is defined as “questioning initiated by law enforcement

officials.” Miranda, 384 U.S. at 444. In Innis, the Supreme Court of the

United States elaborated on this subject as follows:

             We conclude that the Miranda safeguards come into play
      whenever a person in custody is subjected to either express
      questioning or its functional equivalent. That is to say, the term
      “interrogation” under Miranda refers not only to express
      questioning, but also to any words or actions on the part of the
      police (other than those normally attendant to arrest and
      custody) that the police should know are reasonably likely to
      elicit an incriminating response from the suspect. The latter
      portion of this definition focuses primarily upon the perceptions
      of the suspect, rather than the intent of the police. This focus
      reflects the fact that the Miranda safeguards were designed to
      vest a suspect in custody with an added measure of protection
      against coercive police practices, without regard to objective
      proof of the underlying intent of the police. A practice that the
      police should know is reasonably likely to evoke an incriminating
      response from a suspect thus amounts to interrogation. But,
      since the police surely cannot be held accountable for the
      unforeseeable results of their words or actions, the definition of
      interrogation can extend only to words or actions on the part of
      police officers that they should have known were reasonably
      likely to elicit an incriminating response.

Innis, 446 U.S. at 300-02 (internal footnotes omitted).

      The appropriate test for determining whether a situation involves

custodial interrogation is as follows:

         The test for determining whether a suspect is being
         subjected to custodial interrogation so as to necessitate
         Miranda warnings is whether he is physically deprived of
         his freedom in any significant way or is placed in a
         situation in which he reasonably believes that his freedom
         of action or movement is restricted by such interrogation.

      Commonwealth v. Busch, 713 A.2d 97, 100 (Pa. Super.
      1998)[,] quoting Commonwealth v. Rosario, 438 Pa.Super.
      241, 652 A.2d 354, 365–66 (1994) (en banc), appeal denied,

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      546 Pa. 668, 685 A.2d 547 (1996) (other citations omitted).
      Said another way, police detentions become custodial when,
      under the totality of the circumstances, the conditions and/or
      duration of the detention become so coercive as to constitute the
      functional equivalent of arrest.

            The factors a court utilizes to determine, under the totality
      of the circumstances, whether a detention has become so
      coercive as to constitute the functional equivalent of arrest
      include: the basis for the detention; its length; its location;
      whether the suspect was transported against his or her will, how
      far, and why; whether restraints were used; whether the law
      enforcement officer showed, threatened or used force; and the
      investigative methods employed to confirm or dispel suspicions.
      Busch, 713 A.2d at 101. The fact that a police investigation has
      focused on a particular individual does not automatically trigger
      “custody,” thus requiring Miranda warnings.

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (some

internal citations omitted).

      Purportedly applying the above standard, the trial court determined

that Appellant was not subject to a custodial detention at the time she

requested an attorney.     Accordingly, the court concluded that Appellant’s

statements to police were not suppressible under Miranda. Specifically, the

court found as follows:

      Here, Detective Hitchings testified that [Appellant] was under no
      obligation to go with them; that had she refused to accompany
      him, she would not have been compelled to do so. If she had
      asked, during the drive to police headquarters or after they
      arrived to leave, they would have made arrangements to take
      her back to her hotel. At all times prior to the decision to have
      her execute the rights form, she was free to leave. [Appellant]
      testified at the hearing. She stated that she felt that she needed
      to go with the officers when they asked her to do so. She did
      not, however, relate anything the officers said that would cause
      her to believe that. Moreover, although she stated that at some
      point during her interview with Detective Hitchings she asked if
      she could go to lunch and was told no, she did not state when

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     this occurred. Her testimony was descriptive of the entire time
     she was in the police station, which she said was between six
     and seven hours. However, at 1:45 p.m., about an hour and 45
     minutes after she arrived, she was advised that she was being
     taken into custody. At this time, before any further questioning
     took place, her rights were explained to her and she executed
     the rights form.

           This Court found the testimony of Detective Hitchings to be
     credible and that testimony established that [Appellant] was not
     in custody and could not, based on the objective facts,
     reasonably believed herself to be in custody. Her testimony was
     self-serving and not credible.     She claimed that the rights
     warning form was presented to her and executed by her "...at
     the beginning of her time in the interrogation room." The form,
     however, has the time it was executed written on it: "1345
     hours" or 1:45 [p.m.] in non-military time. During her direct
     examination she was asked by her attorney if she asked for an
     attorney at any time while she was at the police station. She
     responded, "I don't remember." A few minutes later, during
     cross examination, she claimed that she asked for an attorney
     when she read the form. On the form the word "yes" is provided
     next to question 6 which asks, "...having these rights in mind, do
     you wish to speak to me now." She admitted reading and
     signing the form, but denied at the hearing that she provided the
     answers.

           These inconsistencies, both within her own testimony and
     with the testimony of the police officers, rendered [Appellant]'s
     testimony not worthy of belief. The Commonwealth met its
     burden of establishing that [Appellant]'s statement was properly
     obtained and, accordingly, the Motion to Suppress those
     statements was properly denied.

TCO at 8-9.

     Appellant contends that she was effectively in custody when she

requested an attorney. She points out that when she made the request(s),

she was seated in the back of a police car, being transported by police in a

city and state unfamiliar to her. Furthermore, although Detective Hitchings

testified that Appellant was free to leave at any time during the ride from


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the hotel to the police station, Appellant contends that he did not

communicate that to her.         Moreover, Appellant testified that Detective

Hitchings made her feel like she did not have a choice whether to

accompany him to the police station.

       In addressing Appellant’s argument(s), we must first note that we are

constrained   by   the   trial   court’s   credibility   determinations   regarding

Appellant’s testimony at the suppression hearing.          Accordingly, we cannot

consider Appellant’s actual, subjective belief on appeal regarding whether

she felt obligated to accompany Detective Hitchings when it is clear that the

trial court found her testimony to that effect not credible, and where it

contradicted Detective Hitchings’ testimony that he merely requested, rather

than ordered, her to go with him.          Thus, we must reject any notion that

Appellant was transported against her will, at least with respect to the way

the transportation was initiated.

       Nevertheless, we agree with Appellant that the objective factors which

she highlights tend to suggest that she was in custody while in the police

car.   Police cars do not typically permit exit from the rear, and there is

nothing of record to dispute that norm. Moreover, the travel time involved

was not insignificant (30 minutes), and because Appellant is not a native of

the Pittsburgh area, she would likely have felt uncomfortable getting out of

the vehicle in such an unfamiliar setting.         Thus, there is at least some

evidence that Appellant would not have felt free to abandon the ride despite

having initially consented to it. Moreover, Appellant broached the topic of

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whether she needed an attorney on multiple occasions, displaying some

objective evidence that she believed she was suspected of a crime, and that

she was being brought to the police station to answer questions as a

suspect, and not merely as a witness to an accident.

      However, the trial court was obliged to weigh these factors against

other factors that suggested that Appellant was not subject to a custodial

detention.   For instance, at least initially, Appellant willingly accompanied

the police officers to the police station. Appellant was not handcuffed during

the ride, or at any time thereafter until she was arrested.     And, although

Appellant’s purse was searched for weapons when she arrived, it was not

immediately taken from her, and she was permitted to retain her mobile

phone until after she executed a Miranda waiver.

      Appellant   contends    that    her     case   compares   favorably    to

Commonwealth v. McCarthy, 820 A.2d 757 (Pa. Super. 2003).             In that

case, the Commonwealth appealed from the trial court’s granting of Patricia

McCarthy’s suppression motion premised upon Miranda. A police detective,

Wagner, interrogated McCarthy at the school where she worked regarding

the theft of a credit card, currency, and prescription medication.          The

Commonwealth argued that the trial court’s decision to suppress McCarthy’s

statements during that interview was erroneous because she was not in

custody when questioned.        In affirming the trial court’s granting of

McCarthy’s suppression motion, we relied on the following:




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      Wagner admitted that his purpose in the return interview was to
      get [McCarthy] to confess, and that the interview took place in
      an office with the door closed. Wagner told [McCarthy] she was
      a suspect, and that he was confident that the handwriting
      analysis would establish that she was the one who had illegally
      used the credit card. [McCarthy] testified that Wagner urged her
      to confess, promising her that if she did, all she would get would
      be probation and placement in a rehabilitation program. If she
      did not, she would receive jail time. If she did not confess, he
      would arrest her and take her out, in handcuffs, in front of all
      her friends.     [McCarthy] asked for permission to call her
      husband, and to talk [to] an attorney, and Wagner refused. As
      she told the court: “I stood up, went to the door, and told him,
      ‘Look, I just want to talk to my attorney,’ and he told me, no,
      this is my window of opportunity; if I walked through that door
      he would make sure that all the charges stuck and he would
      embarrass me in front of my friends. That's when I sat down.”

McCarthy, 820 A.2d at 759 (citations omitted).

      We note that the procedural posture in McCarthy was such that this

Court did not face the same credibility issues that were present in this case.

Furthermore, McCarthy is simply not factually analogous to this case in

many respects. At the time McCarthy expressed her desire to speak with an

attorney, Wagner was threatening her with arrest and threatening to

foreclose upon her rehabilitative opportunities should she be convicted for

the theft of the stolen items. Here, despite that Appellant’s request for an

attorney occurred in a setting more often associated with custodial

detentions (the back of a police car versus a school office), the officers did

not react to Appellant’s request with threats of negative consequences for

talking to an attorney. There is also no evidence here that Appellant was in

any way thwarted in an attempt to terminate her encounter with police

because there is no evidence she made any such attempt.        Consequently,


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we conclude that McCarthy does not provide Appellant with any basis for

relief in this matter.

       Appellant also cites Commonwealth v. Zogby, 689 A.2d 280 (Pa.

Super. 1997), for support. Like our decision in McCarthy, the Zogby Court

considered a Commonwealth’s appeal from the trial court’s granting of a

suppression motion on Miranda grounds. Furthermore, in Zogby,

       Trooper Haubrick entered appellee's bedroom, aroused him from
       a sound sleep and “advised” or requested him to get dressed and
       come down stairs to answer some questions. Trooper Haubrick's
       actions in entering appellee's bedroom, one of the areas of
       greatest privacy, rousing him from a sound sleep and instructing
       him to dress and go outside are highly intrusive and suggest a
       will on the part of the police officer that would not be denied.
       Appellee was not informed that he could decline the request and,
       given the degree of intrusion already experienced, it is highly
       unlikely that appellee believed, or that anyone similarly situated
       would believe, that he could simply turn over and go back to
       sleep.

Zogby, 689 A.2d at 282-83.

       By contrast, in this case, Appellant was not aroused from her slumber

in the privacy of her own bedroom, nor is any similar circumstance present.

The trial court found credible Detective Hitchings’ account that he asked,

rather than ordered, Appellant to accompany him to the police station for

questioning. Moreover, the request occurred in the lobby of a hotel and in

the company of Appellant’s husband.2 Zogby’s facts are simply not nearly
____________________________________________


2
  Although Appellant’s husband was not with her at the time of Steven’s
drowning, it is undisputed that he was with her when she was approached by
Detective Hitchings in the lobby of the hotel the next day.



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analogous enough to the instant case to render erroneous the trial court’s

conclusion that Appellant was not in custody when she inquired about her

right to counsel.

      Although we recognize that this was a close case on the question at

hand, we are unconvinced by Appellant’s arguments that the trial court erred

in determining that she was not in custody prior to when she executed the

Miranda waiver.     The facts relied upon by the trial court in reaching that

conclusion are adequately supported by the record.             The court’s legal

conclusion, which was heavily dependent on those factual determinations, is

not clearly erroneous.      Accordingly, we conclude that the trial court did not

err in denying Appellant’s suppression motion based on Appellant’s claim

that her Miranda rights were violated.

      Next, Appellant claims that the trial court erred when it denied her

motion to suppress the contents of a computer seized during the execution

of a warrant. Specifically, Appellant complains:

      Here, [Appellant] was charged with drowning her son in a hotel
      room bathtub.       Nothing in the affidavit [(attached to the
      warrant)] links that homicide to the items subject to the search.
      The crime occurred in Allegheny County, not in the vicinity of
      [Appellant]'s West Virginia home.        Any link between this
      computer and the crime is too tenuous to be anything more than
      a "fishing expedition" by the police.

Appellant’s Brief, at 35.

      Our standard of review of this matter is as follows:

         Article I, Section 8 [of the Pennsylvania Constitution] and the
      Fourth Amendment [to the United States Constitution] each
      require that search warrants be supported by probable cause.

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     “The linch-pin that has been developed to determine whether it
     is appropriate to issue a search warrant is the test of probable
     cause.” Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d
     887, 899 (1991) (quoting Commonwealth v. Miller, 513 Pa.
     118, 518 A.2d 1187, 1191 (1986)). “Probable cause exists
     where the facts and circumstances within the affiant's knowledge
     and of which he has reasonably trustworthy information are
     sufficient in themselves to warrant a man of reasonable caution
     in the belief that a search should be conducted.”
     Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352, 357
     (1972).

        In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
     L.Ed.2d 527 (1983), the United States Supreme Court
     established the “totality of the circumstances” test for
     determining whether a request for a search warrant under the
     Fourth Amendment is supported by probable cause.                In
     Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986),
     this Court adopted the totality of the circumstances test for
     purposes    of   making     and    reviewing    probable     cause
     determinations under Article I, Section 8. In describing this test,
     we stated:

        Pursuant to the “totality of the circumstances” test set
        forth by the United States Supreme Court in Gates, the
        task of an issuing authority is simply to make a practical,
        common-sense decision whether, given all of the
        circumstances set forth in the affidavit before him,
        including the veracity and basis of knowledge of persons
        supplying hearsay information, there is a fair probability
        that contraband or evidence of a crime will be found in a
        particular place.... It is the duty of a court reviewing an
        issuing authority's probable cause determination to ensure
        that the magistrate had a substantial basis for concluding
        that probable cause existed. In so doing, the reviewing
        court must accord deference to the issuing authority's
        probable cause determination, and must view the
        information offered to establish probable cause in a
        common-sense, non-technical manner.

                                   ***

        [Further,] a reviewing court [is] not to conduct a de novo
        review of the issuing authority's probable cause
        determination, but [is] simply to determine whether or not


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         there is substantial evidence in the record supporting the
         decision to issue the warrant.

      Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537–38,
      540 (2001).

         As our United States Supreme Court stated: “A grudging or
      negative attitude by reviewing courts towards warrants ... is
      inconsistent with the Fourth Amendment's strong preference for
      searches conducted pursuant to a warrant; courts should not
      invalidate warrants by interpreting affidavits in a hypertechnical,
      rather than a commonsense, manner.” Gates, supra at 236,
      103 S.Ct. 2317 (citation and quotation marks omitted); see also
      United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82
      L.Ed.2d 677 (1984) (“Reasonable minds frequently may differ on
      the question whether a particular affidavit establishes probable
      cause, and we have thus concluded that the preference for
      warrants is most appropriately effectuated by according ‘great
      deference’ to a magistrate's determination.”).

Commonwealth v. Jones, 988 A.2d 649, 655-56 (Pa. 2010) (footnote

omitted).

      In justifying its denial of Appellant’s motion to suppress the seized

contents of Appellant’s computer, the trial court found, and Appellant does

not dispute, that the affidavit of probable cause established probable cause

that Appellant killed her son.   Furthermore, the court determined that the

following provisions of the affidavit established probable cause that Appellant

had used her laptop computer in connection with what plans she may have

had to harm or kill her son:

         h. At approximately 12:30 p.m. on July 27, 2012, Detectives
            Miller and Towne interviewed [Appellant]'s husband and
            the victim's father, Steven Flanagan, who stated that in
            the months prior to the victim's death, [Appellant]
            displayed strange behaviors, including accusing Mr.
            Flanagan of child molestation, transferring large sums of
            money from the couple's joint account to an account in


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            only her name, dying the two-year-old victim's hair black,
            and inquiring of Mr. Flanagan whether he had ever
            contemplated suicide and stating that she would consider
            taking her son, the victim, with her if she ever committed
            suicide;

         i. Steven Flanagan also told detectives that after the victim's
            death, he returned to their residence in West Virginia
            where [Appellant] had been living alone with the victim to
            find packed boxes and totes that appeared as if [Appellant]
            was preparing to move and typed notes regarding dying
            the victim's hair black, information on child abduction,
            information on school districts in Ohio, job opportunities,
            and banking information;

         j. According to Mr. Flanagan, the residence lacked any type
            of work processing equipment except for an E Machine
            laptop computer owned by the couple but within
            [Appellant]'s possession during the couple's separation;

         k. On August 2, 2012, Detective Miller and West Virginia
            State Police Trooper Edwards executed a search warrant
            on the residence of Steven Flanagan and [Appellant,]
            Sharon Flanagan[,] at 260 Topaz Lane in Inwood, West
            Virginia;

         l. Mr. Flanagan relinquished custody of the aforementioned E
            Machines laptop computer to detectives.

TCO, at 9-10.

      We agree with the trial court that, based on Mr. Flanagan’s

observations of Appellant’s behavior, her typed notes, and Appellant’s

possession of the computer just prior to her son’s untimely demise, it was

reasonable for the issuing magistrate to believe there was a “fair probability

that contraband or evidence of a crime” would be found on Appellant’s

computer. Torres, supra. Contrary to Appellant’s assertion, this was not a

mere ‘fishing expedition.’ The typed notes discovered by Mr. Flanagan (and

their content), Mr. Flanagan’s statements concerning Appellant’s behavior

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J-S13005-15



prior to the victim’s death, and that the couple did not own any other word

processing equipment, were sufficiently specific to target Appellant’s

computer, and common sense would dictate that relevant evidence would be

found therein. Thus, Appellant’s second claim lacks merit.

      Finally, Appellant challenges the sufficiency of the evidence supporting

her first-degree murder conviction.    Our standard of review of sufficiency

claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Statutorily, “[a] criminal homicide constitutes murder of the first

degree when it is committed by an intentional killing.”          18 Pa.C.S. §

2502(a). Our Supreme Court has elaborated on this definition as follows:

      There are three elements of first-degree murder: (i) a human
      being was unlawfully killed; (2) the defendant was responsible
      for the killing; and (3) the defendant acted with malice and a
      specific intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v.
      Houser, 610 Pa. 264, 18 A.3d 1128, 1133 (2011). As set forth
      in the third element, first-degree murder is an intentional killing,
      i.e., a “willful, deliberate and premeditated killing.” 18 Pa.C.S. §


                                     - 18 -
J-S13005-15


     2502(a) and (d).            “Premeditation and deliberation exist
     whenever the assailant possesses the conscious purpose to bring
     about death.” Commonwealth v. Drumheller, 570 Pa. 117,
     808 A.2d 893, 910 (2002). The law does not require a lengthy
     period of premeditation; indeed, the design to kill can be
     formulated in a fraction of a second.             Commonwealth v.
     Rivera, 603 Pa. 340, 983 A.2d 1211, 1220 (2009);
     Drumheller, supra; Commonwealth v. Earnest, 342 Pa. 544,
     21 A.2d 38, 40 (1941) (“Whether the intention to kill and the
     killing, that is, the premeditation and the fatal act, were within a
     brief space of time or a long space of time is immaterial if the
     killing was in fact intentional, willful, deliberate and
     premeditated.”). Specific intent to kill as well as malice can be
     inferred from the use of a deadly weapon upon a vital part of the
     victim's body. Houser, supra at 1133–34; Briggs, supra at
     306–07; Commonwealth v. Wright, 599 Pa. 270, 961 A.2d
     119, 130–31 (2008). Whether the accused had formed the
     specific intent to kill is a question of fact to be determined by the
     jury. Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911,
     916 (1963).

Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013).

     Here, Appellant argues that the Commonwealth’s theory of the case,

that Appellant “put her baby in the bathtub and held his head under the

water until he died[,]” is unsustainable on sufficiency grounds because

Steven had no bruises or abrasions that would indicate that a struggle

occurred. Appellant’s Brief at 38. We disagree.

     The testimony of Dr. Karl Williams, Chief Medical Examiner for

Allegheny County, belies Appellant’s claim.       He stated that at least two

bruises were found on Steven’s body.         He identified a bruise on Steven’s

arm. N.T., 9/16-20/2014, at 273-74. He identified a bruise on Steven’s leg.

Id. at 274-75.   Furthermore, Dr. Williams testified that Steven died as a




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J-S13005-15



result of drowning.3      Id. at 276.      He also determined that the manner of

death was homicide. Id. at 280.

       With respect to Appellant’s specific claim, when asked if there would

be “a lot of external trauma” if “an adult is going to force” a 32-pound child

under water in a bathtub, Dr. Williams responded:

       Not necessarily, especially in a younger child. We know in a
       somewhat younger category where we think of … sudden infant
       death syndrome, we know you can smother babies without
       leaving any marks whatsoever. Again, it is not – I think in your
       mind you think about adults fighting, struggling, and that might
       be the case, but, as I say, just forcibly forcing water up into the
       upper airways is enough to cause the heart to stop. I don’t
       necessarily expect, especially in a two-year-old to see signs of a
       struggle.

Id. at 280-81.

       Dr. Williams elaborated on this point in the following exchange with

the prosecutor:

       Q. If a child is face down in the water and pressure is applied to
       the back, do you expect to see marks?

       A. No.

       Q. Would a child, a 32-pound toddler be able to flail and scratch?

       A. Again, every case is individual, but I don’t necessarily expect
       to find any signs of a struggle. It all depends if you’re forcibly
       pounding the kid down. If you are holding someone under the
       surface of the water that would be sufficient.


____________________________________________


3
  Although Steven’s heart function was restored through resuscitation, the
blood supply to his brain had been cut off for too long, leaving him brain
dead. Id. at 276.



                                          - 20 -
J-S13005-15


     Q. If [Appellant] told the detective that the water was up to
     about her elbow, which would be almost to the top of the tub,
     that’s a fair amount of water; correct?

     A. Yes, it is.

     Q. Now, … in your expert opinion, … it doesn’t take a lot of
     water to be forced into the mouth or the nose to cause
     drowning?

     A. Again –

     Q. Maybe that wasn’t very artfully phrased. I think the common
     thought is you have to ingest a large volume of water.

     A. Right.

     Q. But that is not –

     A. That is not necessarily the case at all, that is true. The
     circumstances vary widely, but simply the ability to get water
     injected into the upper airway is enough to have the effect of
     stopping the heart, stopping respiration.

Id. at 281-82.

     Based on Dr. Williams’ testimony, it was completely plausible that

Appellant could have drowned Steven without leaving any physical evidence

on his body consistent with a struggle.       Thus, the very premise of

Appellant’s claim, that evidence of a struggle was necessary to prove the

manner and/or cause of death, is unfounded.

     Moreover, in Commonwealth v. Meredith, 490 A.2d 481 (Pa. 1980),

our Supreme Court held that:

     [W]here an adult is given sole custody of a child of tender years
     for a period of time, and, during that time the child sustains
     injuries which may have been caused by a criminal agency, the
     finder of fact may examine any explanation offered and, if they
     find that explanation to be wanting, they may reject it and find
     the person having custody of the child responsible for the
     wounds.

                                  - 21 -
J-S13005-15



Id. at 482-83.

     Applying Meredith, the trial court explains:

     [Appellant’s] testimony that she was present when her son
     drowned also is sufficient to support the jury's conclusion that
     she caused his death. Her explanation that she was unable to
     lift her child from the bathtub is simply not worthy of belief. The
     video tape of her entering the hotel and registering shows her
     carrying Steven and lifting him without any difficulty whatsoever.
     [Appellant]'s trial testimony was glaringly different than what
     she told the officers each time she was interviewed on the day of
     and the day after the events at the hotel. During her statements
     to police, she indicated that she never left the bathroom and was
     sitting on the toilet seat with Steven the entire time. At trial,
     however, her story changed dramatically. She stated that she
     was distracted and out of the bathroom when she realized that
     she could not hear him playing anymore. She said that she went
     in and at that time, found him face down in the tub. She
     explained at trial, however, that her statements to the police
     officers were lies to cover up her inattentiveness because she
     was afraid that she would lose custody of Steven if it was
     determined that she had neglected Steven and allowed this to
     happen.

           The Commonwealth also presented evidence showing
     various internet searches that [Appellant] conducted in the days
     and weeks leading up to her son's death. She read stories about
     Casey Anthony, the women accused of murdering her child, who
     claimed that at trial, that her father had molested the baby. As
     it is well known, Ms. Anthony was acquitted. She also did
     research on the internet what was the leading cause of the death
     of toddlers.

           The facts presented to the jury were that this child was in
     the sole care and custody of his mother when he died. How that
     occurred was the key question at trial and obviously the
     Commonwealth only had circumstantial evidence to try to
     establish that what occurred constituted first[-]degree murder.
     The circumstantial evidence outlined above consisting of
     [Appellant]'s conduct before the incident at the hotel, her
     incredible description of how the death [occurred] in her
     interviews with the police, and then her completely contradictory
     testimony at trial provided the jury with sufficient evidence to

                                   - 22 -
J-S13005-15


       conclude that the death of Steven was intentional and at the
       hands of his mother.

TCO, 12-13 (citations omitted).

       We agree with the trial court.              The circumstantial nature of the

evidence against Appellant did not impede the result reached by the jury in

this case.   See Commonwealth v. Hardcastle, 546 A.2d 1101, 1107-08

(Pa. 1988) (“There is no requirement that a homicide, including murder in

the first degree, be proven by eyewitness testimony.                 Circumstantial

evidence may be sufficient to prove any element, or all of the elements of

the crime.”); Commonwealth v. Wentzel, 61 A.2d 309, 312 (Pa. 1948)

(“Circumstantial evidence is, in the abstract, nearly, though perhaps not

altogether, as strong as positive evidence; in the concrete, it may be

infinitely stronger.”).     Furthermore, pursuant to Meredith, the jury was

permitted to reject Appellant’s inconsistent and, frankly, unbelievable

explanations regarding her son’s death, and find instead that Appellant had

drowned him.        Finally, Appellant’s internet searches conducted prior to

Steven’s death, regarding the Casey Anthony case and the leading causes of

death for toddlers, provided adequate circumstantial evidence of Appellant’s

premeditation, deliberation, and malice.4              As such, we conclude that

Appellant’s sufficiency of the evidence claim lacks merit.
____________________________________________


4
  Although this Court has not found any Pennsylvania cases directly on point,
we recognize that this circumstantial evidence is probative of Appellant’s
mens rea for first-degree murder. In this regard, we find instructive our
sister Commonwealth’s decision in Commonwealth v. Carey, 974 N.E.2d
(Footnote Continued Next Page)


                                          - 23 -
J-S13005-15



      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




                       _______________________
(Footnote Continued)

624, 633 (Mass. 2012). In that case, the appellant contested the admission
of the following evidence in his trial for the attempted murder of the victim
by strangulation:

      [E]ight photographs and [a] ninety-second video depicting
      women in various states of undress being strangled, ostensibly
      to death; [an] [i]nternet article regarding the successful appeal
      of a man convicted of four strangulation murders; and testimony
      regarding the number of explicit images and Internet searches
      found on the defendant's home computer.
Id. at 632.

       The High Court of Massachusetts held that the “images, and the
testimony regarding the additional images and searches related to
strangulation and asphyxiation stored on the [appellant]'s computer, were
sufficiently similar to the way in which the [appellant] assaulted the victim to
be relevant to and probative of his sexual desire and state of mind.” Id. at
633. Similarly, Appellant’s inquiries into the leading causes of death for
toddlers, and her research into the Casey Anthony case, provided evidence,
albeit circumstantial, regarding Appellant’s premeditation so as to support
the jury’s conclusion regarding the malice/intent-to-kill element of first-
degree murder.



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