J-S71036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MALIK ANDERSON                             :
                                               :
                       Appellant               :   No. 425 EDA 2018

            Appeal from the Judgment of Sentence October 15, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011782-2013


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 19, 2019

        Appellant Malik Anderson appeals from the judgment of sentence

entered following his convictions for first-degree murder, firearms not to be

carried without a license, and possessing an instrument of crime (PIC).1

Appellant asserts that the trial court erred in failing to suppress two

statements he made to police.           Appellant also argues that his mandatory

sentence of life imprisonment without the possibility of parole violates the

Eighth Amendment of the United States Constitution and Article 1, § 13 of the

Pennsylvania Constitution based upon the United States Supreme Court’s

ruling in Miller v. Alabama, 567 U.S. 460 (2012).2 We affirm.
____________________________________________


1   18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 907, respectively.

2 In Miller, the United States Supreme Court held that a sentencing scheme
that mandates life in prison without possibility of parole for juvenile homicide
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        The following is the relevant factual background to this matter.3

Appellant, who was nineteen at the time of the crime, was charged with the

shooting death of his friend, Daquan Crump, at a construction site in northeast

Philadelphia on August 19, 2013. Crump had been shot eleven times in the

head.

        On August 20, 2013, Appellant’s parents took him to the Homicide Unit,

where detectives were gathering information from individuals who knew

Crump.      Detective James Griffin and Detective Hank Glenn conducted an

interview    during    which    they    obtained   information   about   Appellant’s

background and his relationship with Crump. Appellant was at the Homicide
____________________________________________


offenders is forbidden by the Eighth Amendment. See Miller, 567 U.S. at
470.

3 On October 30, 2013, our Supreme Court decided In re L.J., 79 A.3d 1083
(Pa. 2013). In L.J., our Supreme Court held that the appellate scope of
review of a suppression ruling is limited to the evidentiary record that was
created at the suppression hearing. 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.” See Commonwealth v. Charleston, 16 A.3d 505, 516
(Pa. Super. 2011) (citing Commonwealth v. Chacko, 459 A.2d 311, 317 n.5
(Pa. 1983)). L.J. thus narrowed our scope of review of suppression court
rulings to the evidence presented at the suppression hearing.

However, L.J. declared that the new procedural rule of law it announced was
not retroactive, but was rather “prospective generally,” meaning that the rule
of law was applicable “to the parties in the case and [to] all litigation
commenced thereafter.” L.J., 79 A.3d at 1089 n.19. Since the litigation in
the instant case commenced before L.J. was filed, the new procedural rule of
law announced in L.J. does not apply to the case at bar. See id. Accordingly,
in summarizing the evidence, we may include evidence presented both during
the suppression hearing and at trial.



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Unit until the next evening, when he signed an exculpatory written statement

indicating that he found out from a friend, “Niam,” that Crump had died and

that Appellant had last seen Crump at Appellant’s house around midnight on

the night he was killed, when Crump left Appellant and a group of friends to

go elsewhere. Appellant was released on the evening of August 21, 2013,

after spending nearly thirty hours at the Homicide Unit.

        On August 23, 2013, police took statements from two witnesses

indicating that Appellant had confessed to them that he had murdered Crump.

Also on August 23, 2013, the police executed a search warrant at Appellant’s

home at 1810 Tomlinson Road in Philadelphia.        In executing the search

warrant, the police seized a gun belonging to Appellant.        The Firearms

Identification Unit determined that the gun matched the ballistics evidence

obtained from the crime scene and the body of Crump. After seizing the gun,

detectives obtained an arrest warrant for Appellant. Police arrested Appellant

at his home at 6:00 a.m. on August 28, 2013.

        Police took Appellant to the Homicide Unit at around 7:00 a.m. on

August 28, 2013. At 11:39 a.m., Detective Griffin and Detective Freddy Mole

gave Appellant his Miranda4 warnings. At 11:45 a.m., Appellant began to

give a second statement in which he admitted to killing Crump. He signed the

statement at 1:40 p.m.




____________________________________________


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

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      As to the procedural history of this matter, on October 14, 2013,

Appellant filed a motion to suppress both statements he made to police. In

his motion to suppress, Appellant asserted that he was arrested prior to giving

both statements and that he was not warned of, nor did he waive, his Miranda

rights. See Ominbus Pretrial Mot., 10/14/13, at 2-3 (unpaginated).

      Appellant testified at the suppression hearing that during the thirty-hour

period in which he was initially at the Homicide Unit, he was not offered

anything to eat or drink other than water. N.T. Suppression Hr’g, 10/8/14, at

32. Appellant was not able to sleep because

      [t]hey [kept] coming in interrogating me. Just they wouldn’t allow
      me to sleep even if I wanted to. . . . I’ll say they kept bombarding
      the room. Like, even if I started to get comfortable on the table,
      they would just like, get off the table, like. Like, they wouldn’t
      allow me to get comfortable.

Id. at 33. Appellant had to be escorted any time he went to the bathroom.

Id.   Additionally, when asked if he was free to leave, Appellant stated:

“Absolutely not. I wanted to leave, but they just said it doesn’t work like that,

kid.” Id. Detective Griffin testified that Appellant “would have been given

water, soda, a coffee, whatever beverage he chose that we had there as well

as if he wanted a snack or a sandwich or something, we would have gotten it

for him.” N.T. Suppression Hr’g, 10/6/14, at 16. However, Detective Griffin

also indicated that no requests were documented in the record and that he

could not recall whether or not Appellant was provided with anything to eat or

drink. Id.




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     While Appellant was at the Homicide Unit, his mother retained

Appellant’s trial counsel. Appellant’s mother telephoned the Homicide Unit

approximately twelve times in an attempt to ask Detective Griffin to inform

Appellant that he had an attorney. Appellant’s mother actually spoke with

Detective Griffin on two occasions and informed him that Appellant was

represented by counsel. Several days after Appellant was released, Appellant

went to counsel’s office, where counsel told him not to say anything to police

without an attorney present.

     In his second statement, after police arrested Appellant on August 28,

2013, Appellant confessed to the crime, admitting that he killed Crump

because of a dispute over the division of the proceeds of a theft.     At the

suppression hearing, Detective Griffin testified that Appellant was merely

informed he was under arrest, and that no informal conversation with

Appellant occurred between 7:00 a.m., when Appellant was arrested, and

11:39 a.m., when Appellant was given his Miranda rights.          Id. at 24.

Detective Griffin stated that he read Appellant his Miranda warnings and that

Appellant seemed to understand them and signed his name indicating that he

understood the warnings.       Id. at 26.   The Commonwealth introduced a

document into evidence with the Miranda warnings and Appellant’s initials

and signature that he understood the warnings. See id. at 23-27.

     Appellant, however, testified that after he was arrested, he repeatedly

told the detectives that his counsel informed him not to say anything without




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counsel present. See N.T. Suppression Hr’g, 10/8/14, at 38. Appellant also

testified that he did not sign any papers that day. See id.

        The trial court denied Appellant’s motion to suppress, making a

credibility determination that Appellant “ha[d] to invoke his right to counsel

personally. That was not done, in [the court’s] opinion.” N.T. Suppression

Hr’g, 10/8/14, at 67.

        Thereafter, Appellant proceeded to a jury trial.         The trial court

summarized the remaining procedural history of this appeal as follows:

        On October 15, 201[4], a jury found [Appellant] guilty of [the
        foregoing charges]. [Appellant] was immediately sentenced to life
        imprisonment for murder, three and one-half to seven years of
        imprisonment for [Section] 6106(a)(1) and two and one-half to
        five years of imprisonment for [PIC,] to run concurrently. On
        November 24, 2014, [Appellant] filed a pro[ ]se notice of appeal
        to the Superior Court. On March 2, 2015, the Superior Court
        quashed the appeal as untimely at No. 3463 EDA 2014.

        On September 9, 2015, [Appellant] filed a [pro se] PCRA[5]
        Petition. Eileen Hurley, Esquire [(PCRA counsel)] was appointed
        to represent [Appellant]. [On August 7, 2017, PCRA counsel filed
        an amended PCRA petition[6] requesting the restoration of
        Appellant’s direct appeal rights nunc pro tunc.] On January 2,
        2018, th[e trial c]ourt granted relief and restored [Appellant’s]
        appellate rights. James F. Berardinelli, Esquire was appointed to
        represent [Appellant] on appeal.         On February 1, 2018,
        [Appellant] by counsel filed a notice of appeal to the Superior
        Court.

Trial Ct. Op., 5/25/18, at 1-2.


____________________________________________


5   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

6The record does not reveal why it took nearly two years for the amended
PCRA petition to be filed following Appellant’s filing of his pro se PCRA petition.

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      Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement after

requesting and receiving an extension of time to do so. In his Rule 1925(b)

statement, Appellant claimed that the trial court erred in denying his motion

to suppress and that the mandatory imposition of a life sentence was

unconstitutional under Miller. See Rule 1925(b) Statement, 4/20/18. The

trial court issued a Pa.R.A.P. 1925(a) opinion suggesting no relief was due

because: (1) Appellant was not in custody when he gave his first statement;

(2) Appellant did not ask for a lawyer immediately before or while he gave his

second statement; and (3) Miller did not apply because Appellant was

nineteen years old when he committed the offenses. Trial Ct. Op., 5/25/18,

at 5-6.

      On appeal, Appellant raises the following questions for our review:

      1. Did the [trial] court err in denying [Appellant’s] Motion to
         Suppress his first statement where [Appellant] was not issued
         Miranda warnings and was held in custody for nearly 30 hours
         before the statement was obtained?

      2. Did the [trial] court err in failing to suppress [Appellant’s]
         second statement where [Appellant] had previously indicated
         his desire for counsel by retaining an attorney and meeting and
         consulting with him?

      3. Is [Appellant’s] sentence of life without parole a violation of
         the Eighth Amendment of the United States Constitution and
         Article 1, § 13 of the Pennsylvania Constitution under the
         rationale espoused by the Supreme Court of the United States
         in Miller v. Alabama . . . and its progeny?

Appellant’s Brief at 3.

      In his first issue, Appellant asserts that




                                      -7-
J-S71036-18


      after homicide detectives determined that they were[] “keeping”
      [Appellant] to verify the information initially provide by him[,]
      they detained him for nearly 30 hours [without food]. Such
      circumstances overwhelmingly establish the functional equivalent
      of an arrest, since no reasonable person would feel their freedom
      of movement and action [were] not restricted under such
      circumstances.

Id. at 10 (citing Commonwealth v. Turner, 772 A.2d 970 (Pa. Super.

2001)). Additionally, “[a]fter being subjected to these conditions, [Appellant]

was not given Miranda warnings. As a result[,] his subsequent responses to

questions should have been suppressed.” Id.

      We note that

      our standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is limited to determining whether
      the factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. We are
      bound by the suppression court’s factual findings so long as they
      are supported by the record; our standard of review on questions
      of law is de novo. Where, as here, the defendant is appealing the
      ruling of the suppression court, we may consider only the evidence
      of the Commonwealth and so much of the evidence for the defense
      as remains uncontradicted. Our scope of review of suppression
      rulings includes only the suppression hearing record and excludes
      evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

      It is well settled that

      [i]n Miranda, the United States Supreme Court held that a
      confession given during custodial interrogation is presumptively
      involuntary, unless the accused is first advised of his right against
      self-incrimination. Miranda warnings are not required where the
      interrogation is not custodial. A person is in custody for the
      purposes of a custodial interrogation when 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

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     action or movement is restricted by the interrogation. Police
     detentions become custodial when under the totality of the
     circumstances the conditions and/or duration of the detention
     become so coercive as to become the functional equivalent of
     arrest.

        Among the factors the court utilizes in determining, under
        the totality of the circumstances, whether the detention
        became so coercive as to constitute the functional
        equivalent of arrest are: the basis for the detention; the
        location; whether the suspect was transported against his
        will; how far, and why; whether restraints were used; the
        show, threat or use of force; and the methods of
        investigation used to confirm or dispel suspicions.

Commonwealth v. DiStefano, 782 A.2d 574, 579-80 (Pa. Super. 2001)

(citations and internal quotation marks omitted).

     In Yandamuri, the defendant asserted that his encounter with

detectives that began at a casino was an illegal arrest unsupported by

probable cause, and that all statements resulting from police questioning

following the arrest should have been suppressed.       Id.   In support of his

position, the defendant asserted that the detectives:

     had casino security personnel and a state policeman escort him
     from a gaming table to a private hallway restricted for casino
     employees; precluded him from cashing in his chips; failed to
     return his casino player’s card; prohibited him from driving to the
     police station in his own vehicle; held his cell phone during the
     drive to the police station; and denied his requests to call his
     pregnant wife and answer her incoming call. [The defendant]
     argue[d] that a reasonable person under similar circumstances
     would not have felt comfortable terminating the encounter at the
     casino and, instead, would have complied with the detectives’
     request to accompany them to the police department solely out of
     fear. Accordingly, he contend[ed], all evidence stemming from
     the illegal detention at the casino, including his inculpatory written
     and video-taped statements given later at the police station,
     should have been suppressed.


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Id. at 516-17.

     The trial court in Yandamuri credited testimony from a detective, and

found that

     two casino security officers and a Pennsylvania State Policeman
     made contact with Appellant at the blackjack table and asked him
     to come into the hallway; that [a detective] then asked [the
     defendant] if he would help in the investigation of Baby’s
     kidnapping by coming to the police station to answer questions;
     that without hesitation, [the defendant] said yes; that none of the
     officers told [the defendant] that he was required to speak with
     them, none of them were in uniform, and no badges or weapons
     were displayed; that prior to exiting the casino, [the defendant]
     asked to cash out his chips, which a casino employee did for him;
     that the detectives informed [the defendant] that they would drive
     him to the police station and return him to his vehicle when the
     questioning was concluded; that [the defendant] was not
     restrained while travelling in [the detective’s] unmarked vehicle;
     and that [the defendant] consented to [the detective] holding his
     cell phone during the ride and the phone was returned to him upon
     arriving at the police station without the detectives examining its
     contents. Based on the totality of these circumstances, the trial
     court concluded that [the defendant] was not under arrest or
     otherwise in custodial detention as a reasonable person in his
     circumstances would have felt free to decline the detectives’
     requests.

Id. at 517. Our Supreme Court held that the facts as determined by the trial

court were supported by the record and that the legal conclusion that the

defendant was not arrested or illegally detained was correct. Id.

     In DiStefano, the trial court denied the defendant’s suppression

motion, holding that he was not subjected to a custodial interrogation where:

     1) at one point during the interrogation, after the tone of the
     interview had turned accusatory and confrontational, one of the
     officers told [the defendant] that if he was not going to tell the
     truth, he might as well leave; 2) [the defendant] was twice told
     that he was not under arrest; 3) [the defendant] came to the

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J-S71036-18


      barracks voluntarily; 4) [the defendant] was not hand-cuffed or
      isolated in a holding area; 5) [the defendant] was given beverages
      and bathroom breaks; 6) the door to the interview room was
      closed but not locked; and 7) [the defendant] did not himself
      believe he was in custody because at one point he asked if he
      could leave.

DiStefano, 782 A.2d at 580.

      However, this Court found that the trial court’s determination was in

error based upon the totality of the circumstances:

      The subject interrogation was admittedly designed to elicit an
      incriminating response. The detention occurred in the police
      barracks.    [The defendant] was detained for eleven hours
      overnight. The only persons [the defendant] saw during that time
      were police officers. The interview turned confrontational and
      accusatory five hours before its conclusion with the police telling
      [the defendant] that they believed he was the perpetrator and
      that they did not believe his denials.         The crime under
      investigation was murder. [The defendant’s] vehicle keys were
      taken from him and were not returned. At approximately 3:00
      a.m., [the defendant] expressed a desire to leave and was told
      “no. You know, you’re here. If you’re going to tell us, tell us.”
      Accordingly, we find that the police action physically and
      psychologically deprived [the defendant’s] freedom of movement
      and choice in a significant way and constituted a custodial
      interrogation.

Id. Accordingly, this Court overruled the trial court’s ruling on the suppression

motion, finding that “the confession was given in violation of [the defendant’s]

rights under Miranda and was not voluntary.” Id. at 584.

      Here, the totality of the circumstances surrounding Appellant’s initial

interview with police at the Homicide Unit was more akin to the facts in

DiStefano than the facts in Yandamuri. Appellant was detained for nearly

thirty hours and only saw police officers during that time. Appellant was not

permitted to go to the restroom alone and was provided only with water during


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J-S71036-18



his detention. Appellant expressed a desire to leave but was told it “doesn’t

work like that.” N.T. Suppression Hr’g, 10/8/14, at 33.

      Accordingly, the trial court’s determination that Appellant was not “in

custody” is not supported by the record and is erroneous. See Yandamuri,

159 A.3d at 516. Rather, the police physically and psychologically deprived

Appellant’s freedom of movement and choice in a significant way, which

constituted a custodial interrogation that was coercive and intimidating. See

DiStefano, 782 A.2d at 580.      As a result of the custodial interrogation to

which Appellant was subjected during his first interview at the Homicide Unit,

the written statement he made at the conclusion of the interview should have

been suppressed. See id. at 584.

      Nevertheless, we must address the Commonwealth’s assertion that

even if Miranda warnings were required during Appellant’s initial interview,

the introduction of Appellant’s statements from that interview was harmless.

      We note that “[a] suppression court’s error regarding failure to suppress

statements by the accused will not require reversal if the Commonwealth can

establish beyond a reasonable doubt that the error was harmless.”

Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998).

      Here, the contents of Appellant’s exculpatory statement were similar to

the contents of the statement of another witness, Ryan Farrell, which was

introduced into evidence. Specifically, Farrell stated that the evening before

Crump was killed, at some point after 10:00 p.m., Farrell saw Crump in front

of Appellant’s house. See Commonwealth’s Ex. 50 at 2 (unpaginated). Crump

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indicated he was going to Frankford, and walked away, which was the last

time Farrell saw Crump. Id. Therefore, because the statements of Appellant

and Farrell contained substantially similar information and Farrell’s statement

was properly introduced into evidence, the error in allowing Appellant’s initial

statement to be introduced into evidence was harmless beyond a reasonable

doubt. See Baez, 720 A.2d at 720.

      In his second issue, Appellant asserts that

      [t]he Pennsylvania Supreme Court has recently addressed the
      remote invocation of the right to remain silent in Commonwealth
      v. Bland, 115 A.3d 854 (Pa. 201[5]). In Bland, the Court
      rejected [the] defendant’s claim that a letter from counsel six days
      before his questioning constituted an invocation of his right to
      remain silent. Specifically, the Court stated that “[Bland] simply
      did not invoke his rights in close association with custodial
      interrogation; in point of fact, [Bland] acceded to questioning at
      such time.” Bland, 115 A.[3]d at 862.

      The instant case, however, stands in stark contrast to Bland.
      Here, [Appellant’s] counsel immediately[] invoked [Appellant’s]
      right to remain silent when [Appellant] was initially detained by
      police. Despite this invocation, the police subjected [Appellant]
      to questioning after he was detained on August 28, 2013. [Since
      Appellant had retained an attorney and met with the attorney,
      t]his questioning constituted a clear violation of [Appellant’s] right
      to remain silent and right to counsel, the fruits of which must be
      suppressed.

Appellant’s Brief at 10-11.

      In Bland, the Pennsylvania Supreme Court rejected the defendant’s

attempt to anticipatorily invoke his right to counsel in advance of custodial

interrogation.   Rather, the Court held that “to require a suspension of

questioning by law enforcement officials on pain of an exclusionary remedy,



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an invocation of the Miranda-based right to counsel must be made upon or

after actual or imminent commencement of in-custody interrogation.” Bland,

115 A.3d at 863.

     Instantly, Appellant asserts that his counsel invoked his right to counsel

for him. Appellant’s Brief at 10. This is contrary to the principle that “[a]

defendant’s right to counsel is the defendant’s right and not the attorney’s

right.” Commonwealth v. Lowery, 419 A.2d 604, 607 (Pa. Super. 1980).

     Moreover, Appellant attempts to distinguish Bland on the grounds that

he allegedly invoked his right to counsel when the police questioned him

following his arrest on August 28, 2013. However, at the suppression hearing,

the trial court made a credibility determination that Appellant had not done

so. See N.T. Suppression Hr’g, 10/8/14, at 67. The record reveals only that

Appellant spoke with counsel several days before his arrest. Assuming the

meeting with counsel is the basis for Appellant’s assertion of his right to

counsel, it was not “upon or after actual or imminent commencement of in-

custody interrogation.” Bland, 115 A.3d at 863. Accordingly, no relief is due.

See id.

     In his final issue, Appellant argues that his sentence of life without

parole is “a violation of the Eighth Amendment of the United States

Constitution and Article 1, § 13 of the Pennsylvania Constitution under the

rationale espoused by the Supreme Court of the United States in Miller v.

Alabama[.]” Appellant’s Brief at 12. Appellant asserts that this is the case

because “[r]ecent science . . . has determined that the immaturity,

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impetuosity and failure to appreciate risks and consequences on which

Miller’s holding is rooted, continue into [a person’s] mid-20’s[.]” Id.

      The holding in Miller applies to juveniles under the age of eighteen.

Appellant provides no case, and we are unaware of any, which extends its

holding to individuals over the age of eighteen at the time they committed

murder.   Because Appellant was nineteen at the time of the crime in the

instant matter, he cannot avail himself of the holding in Miller. See, e.g.,

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (holding

that “petitioners who were older than 18 at the time they committed murder

are not within the ambit of the Miller decision”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/19




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