J-A24003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                     v.

JASON R. MILLER

                           Appellant                     No. 3750 EDA 2015


           Appeal from the Judgment of Sentence November 16, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001170-2014


BEFORE: BOWES, OTT AND SOLANO, JJ.

MEMORANDUM BY BOWES, J.:                               FILED JANUARY 18, 2017

      Jason R. Miller appeals from the aggregate judgment of sentence of

fifteen to forty years incarceration imposed following a stipulated non-jury

trial resulting in convictions on two counts of rape of a child. The sole issue

on appeal pertains to the trial court’s denial of the motion seeking to

suppress a statement given on January 21, 2014. We affirm.

      The    stipulated    facts   were   introduced   through   incorporation    of

testimony from the suppression hearing, the affidavit of probable cause, and

an   audio    recording,   with    corresponding   transcription,   of   Appellant’s

statement.     The victim, A.S., is the daughter of Appellant’s ex-paramour

Phyllis.    Sometime in May of 2010, when A.S. was eleven years old,

Appellant, while visiting Phyllis, pushed A.S. onto her bed and vaginally

raped her. Appellant was thirty-four years old.
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      In October of 2010, Phyllis and A.S. moved to Corona, California,

where Appellant primarily resided.     During her stay, A.S. was forced to

participate in numerous sexual encounters. She and Phyllis moved back to

Pennsylvania in June of 2011. Appellant visited in July of 2011 and again

sexually assaulted A.S.     He maintained communication with A.S. through

2013 via email and text messages.

      In July of 2013, A.S. confided to her boyfriend about these events,

who in turn assisted A.S. with notifying officials at her school and the Lower

Merion Township Police. As a result, warrants for Appellant’s email accounts

were prepared and executed, with the fruits corroborating a sexual

relationship.

      On January 21, 2014, Corona Police Department served an arrest

warrant at Lower Merion’s request.       Appellant was taken to the police

station, where he gave the following account.     Appellant met Phyllis on a

dating website during a time period when he and his wife were experiencing

marital difficulties.   The relationship ended when Phyllis insisted that he

leave his wife. Phyllis and A.S. moved in with him and his wife in California

because Phyllis needed to get away from her ex-husband. Appellant told his

wife about the affair, but convinced her that Phyllis needed their help. He

denied any sexual contact with A.S., and denied any continuing contact with

A.S. after she returned to Pennsylvania with her mother.




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      When confronted with evidence of the communications occurring after

A.S. returned to Pennsylvania, including emails to A.S., Appellant stated

someone must have hacked his account. He attributed the allegations to the

fact that Appellant would not leave his wife.

      The detectives then informed Appellant they possessed an audio

recording, made by A.S., of a phone conversation between the two in

February of 2013. At this point, Appellant admitted to having sex with A.S.

on multiple occasions. He claimed A.S. threatened to tell her mother that

Appellant raped her if he did not have sex with A.S.

      For these crimes, Appellant was charged at criminal case number

2014-1170     with   forty   separate    crimes,   thirty-eight   of   which   the

Commonwealth nolle prossed prior to the stipulated trial. On May 30, 2014,

Appellant filed a motion to suppress, which was denied following an

evidentiary hearing on April 24, 2015. The denial of that motion is the sole

issue presented on appeal:

      Whether the trial court erred in denying [A]ppellant’s Motion to
      suppress his statement because it was not voluntary due to the
      fact that [A]ppellant was suffering from significant physical pain
      at the time of the interrogation, and his ability to give a
      voluntary statement was overborne by his medical condition?

Appellant’s brief at 4.

      Where the denial of a defendant’s suppression motion is at issue, we

are subject to the following standard of review:

      [An appellate court's] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to

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       determining whether the suppression court's factual findings are
       supported by the record and whether the legal conclusions
       drawn from those facts are correct. Because the Commonwealth
       prevailed before the suppression court, we may consider only
       the evidence of the Commonwealth and so much of the evidence
       for the defense as remains uncontradicted when read in the
       context of the record as a whole.

Commonwealth v. Witmayer, 144 A.3d 939, 948 (Pa.Super. 2016)

(citation omitted).

       In the present case, the suppression court took testimony regarding

Appellant’s physical condition during the arrest and subsequent statement.

That hearing revealed the following. Between 7:00 and 8:00 a.m., Corona

Police officers proceeded to Appellant’s residence.              N.T. Suppression,

4/24/15, at 10. Dispatchers spoke to Appellant on the phone and told him

to go outside, where he was handcuffed and told to sit on the ground. Id. at

14.   Appellant requested alternative arrangements due to back pain, and

Sergeant Daniel Dunnigan of the Corona Police accommodated this request

by allowing Appellant to sit on the bed of a truck. Id. at 15. Other officers

drove Appellant to the police station while Sergeant Dunnigan conducted

further investigation at the residence. Id. at 17.

       At 10:33 a.m., Sergeant Dunnigan interrogated Appellant at the police

station.      Appellant     was    read    Miranda1   warnings    and   signed   an

accompanying form reflecting he understood those rights. While Appellant

____________________________________________


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



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complained of pain several times during the interview, Sergeant Dunnigan

opined that Appellant did not appear to have any difficulties understanding

the proceedings.    Id. at 8.   The sergeant further testified that Appellant

never expressed any desire to stop speaking for any reason. Id. at 7. The

interview lasted a little over an hour. Id. at 25.

      Appellant testified that he has bulging disks in his back, which cause

numbness and severe pain in his lower back and legs. Id. at 28. He took

narcotics to manage the pain and normally wore a back brace.        Id. at 29,

37. He averred that he was in extreme pain during the interview and felt he

had no choice but to give a statement. Id. at 42. He stated that he told

multiple officers prior to his interrogation that he was in extreme pain,

wanted to speak to a lawyer, and needed medication.           Id. at 41.    He

answered the questions without specifically mentioning those matters on the

tape because he felt it was clear that the police were not willing to allow him

any medical attention. Id. at 54.

      Following argument, the suppression court issued findings of fact

crediting the testimony of Sergeant Dunnigan.         The suppression court

emphasized that Appellant was read his Miranda warnings, signed a

corresponding form, stated “I have nothing to hide” before answering

questions, and did not appear to have any problems understanding what

was being asked. The court discredited Appellant’s testimony that he asked

questioning to cease, whether due to pain or to speak to a lawyer, finding


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there was nothing in the transcript of the audio statement to support that

allegation. Id. at 68-73.

      There is no dispute that Appellant was in pain. However, the question

is whether, under the totality of the circumstances, the confession was a

free choice. Pain is but one factor in assessing voluntariness. “There is of

course no single litmus-paper test for determining a constitutionally

impermissible interrogation. . . . [T]he ultimate test of voluntariness is

whether     the   confession   is   the   product    of    an    essentially   free   and

unconstrained choice . . . we must consider the totality of the circumstances,

including the accused's mental and physical condition.” Commonwealth v.

Johnson, 107 A.3d 52, 93 (Pa. 2014) (quotation marks and citations

omitted).    We are guided by the following non-exclusive list of factors in

assessing totality of the circumstances:

      the duration and means of interrogation, including whether
      questioning was repeated, prolonged, or accompanied by
      physical abuse or threats thereof; the length of the accused's
      detention prior to the confession; whether the accused was
      advised of his or her constitutional rights; the attitude exhibited
      by the police during the interrogation; the accused's physical and
      psychological state, including whether he or she was injured, ill,
      drugged, or intoxicated; the conditions attendant to the
      detention, including whether the accused was deprived of food,
      drink, sleep, or medical attention; the age, education, and
      intelligence of the accused; the experience of the accused with
      law enforcement and the criminal justice system; and any other
      factors which might serve to drain one's powers of resistance to
      suggestion and coercion.

Commonwealth         v.   Bryant,    67    A.3d     716,   724     (Pa.   2013)   (citing

Commonwealth v. Perez, 845 A.2d 779 (Pa. 2004)).                          Whether the

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confession is voluntary is a question of law subject to de novo review.

Commonwealth v. Nester, 709 A.2d 879, 881 (Pa. 1998). However, the

underlying   factual   and   credibility   determinations   pertaining   to   the

circumstances are owed deference and must merely be supported by record.

Nester, supra; see Miller v. Fenton, 474 U.S. 104, 117 (1985) (“Of

course, subsidiary questions, such as the length and circumstances of the

interrogation . . . often require the resolution of conflicting testimony of

police and defendant.”).

      Appellant avers that his physical pain rose to the level that his will was

overcome.    He primarily relies upon Commonwealth v. Perry, 379 A.2d

545 (Pa. 1977), and Commonwealth ex rel. Gaito v. Maroney, 220 A.2d

628 (Pa. 1966) as authorities supporting reversal.          We find both cases

readily distinguishable.

      In Perry, the defendant suffered a self-inflicted gunshot wound to the

chest as he fled from the police. Id. at 546. He was taken to the hospital,

given a pain drug, and guarded by a police officer stationed near the room.

Approximately thirteen hours later, he was interviewed and gave a

statement.    The Perry Court set forth the circumstances surrounding the

interrogation as follows.

      During the interview appellant was lying in bed and was alone in
      the room with the interrogating detective. During the interview
      he complained to the detective of pain and was experiencing
      discomfort from a catheter inserted through the penis into the
      bladder in order to monitor for any abnormal bleeding indicating
      injury to the bladder, urinary tract or kidney. At one point during

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     the interview, when the appellant complained of pain, he asked
     the detective to call the nurse. When the nurse arrived, the
     appellant informed her that he was in pain and wanted some
     type of medication. Medication, however, was refused.
     Throughout the interview, appellant was being fed through an
     intravenous tube. The catheter remained in the appellant for
     over two days and the intravenous feeding continued constantly
     for about four days. At one point during the interrogation,
     appellant was asked by the detective if he wanted to continue
     the interrogation and the appellant answered that he “didn't
     care.”

Id. at 547.    Applying the totality of the circumstances test, the Court

concluded that because the appellant was being fed intravenously, had a

catheter causing much discomfort, was under police guard and denied

medication for pain, and had not seen any familiar face for more than twelve

hours, the confession was not a free and unconstrained choice.

     In Maroney, the appellant was found at approximately 3:00 a.m. by

the entrance of a hospital with a bullet wound in his abdomen.       He was

immediately rushed into surgery, during which he received transfusions of

blood equaling approximately 40% of his entire blood supply, and was

administered multiple medications.   Id. at 630.   Approximately four hours

after surgery, an assistant district attorney investigating the crimes in

question spoke to the appellant for approximately thirty minutes and elicited

incriminating statements. Id. In a note made in a hospital record one hour

after the confession was obtained, the appellant was described as “very

incoherent.”   Id.   Additionally, the Commonwealth’s own expert, who

testified that the effects of the drugs administered during surgery would



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have been dissipated by the time of the confession, admitted on cross-

examination that “the totality of the circumstances cast doubt on appellant's

ability to understand, to reflect upon, and to form intelligent answers to the

questions propounded during the interview.” Id. Thus, “When the pertinent

circumstances are considered . . . the probability that appellant's confession

was the product of a rational intellect and a free will appears remote.” Id.

at 632.

      The present circumstances are markedly different from Perry and

Maroney. First, neither case involved chronic pain.        Appellant herein has

suffered from back pain for approximately three to four years.              N.T.

Suppression, 4/24/15, at 29.      When discussing his back issues with the

detectives, Appellant noted, “It’s just, I got to live with this type of pain.”

Transcript of Statement, 1/21/14, at 10. Appellant’s back pain was thus a

facet of life that he coped with on a daily basis, and not comparable to the

traumatic gunshot wounds in Perry and Maroney.              Additionally, Perry

attached significance to the fact the statement occurred in a hospital,

stating, “The legislature has recognized in another context that statements

made by injured persons in a hospital setting raise very serious questions as

to whether such statements should be recognized as valid by the law.” Id.

at 547. This statement, given at a police station, is clearly not of like kind.

      Moreover, there is no indication, as in Maroney, that Appellant was

incoherent in any way.       We have reviewed the audiotaped statement


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transcript and it is clear that Appellant had no trouble answering questions.

He spoke about numerous aspects of his life, including his prior employment,

his difficulties obtaining insurance coverage for additional back surgeries, his

relationship with Phyllis and his wife, and the crimes.             He answered all

questions without difficulty, and exhibited no signs of a compromised mental

condition or clouded judgment. He initialed and completed a Miranda form.

These    facts   are   countervailing   considerations   in   the   totality   of   the

circumstances. See Commonwealth v. Poplawski, 130 A.3d 697, 712–13

(Pa. 2015) (noting that defendant completed a Miranda form without

difficulty, spoke coherently while in hospital, and was responsive during

hospital room arraignment, thus “demonstrat[ing] both his capacity to know

what he was saying and his freely exercised will to say it”).

        Finally, as the suppression court noted, Appellant originally denied any

inappropriate contact and specifically denied communications with A.S.

occurring after her return to Pennsylvania.        Later, when confronted with

evidence he had sent emails to her, Appellant changed his story and

admitted to having sex with the victim, but blamed her for his actions. As

the trial court stated, this “calculated attempt” to deceive police “shows that

he was of clear mind.” Trial Court Opinion, 1/21/16, at 7.

        We agree. Our Courts have found that such deceptive and misleading

statements are relevant to the totality of the circumstances inquiry.                In

Commonwealth v. (Roderick) Johnson, 727 A.2d 1089 (Pa. 1999), our


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Supreme Court discussed this concept.        Johnson, while in an ambulance en

route to a hospital for emergency surgery to treat a gunshot wound to the

stomach, was asked by police, who had no reason to suspect Johnson was

involved in any crime, who shot him. Johnson gave a false story and later

sought to suppress the statement as a noncustodial interrogation that

resulted in an involuntary confession, claiming his physical condition was so

impaired as to render him incapable of giving any kind of statement. The

Court discounted the effect of the pain and traumatic injury on his capacity

to give a voluntary statement, stating that

      the result of this initial questioning was not a “confession” by
      [Johnson] of participation in the murders, but rather a false
      story designed to mislead police concerning the circumstances of
      [Johnson]’s shooting. While [Johnson] contends that he was
      incapable of voluntarily giving statements to the police due to his
      “delirium,” his presence of mind in fabricating a story about his
      shooting seriously undermines that claim. Considering the
      totality of the circumstances, we do not find that this
      noncustodial interrogation resulted in an involuntary confession.
      ...

Id. at 1099. See Commonwealth v. (Christopher) Johnson, 107 A.3d

52, 94 (Pa. 2014) (citing (Roderick) Johnson for proposition that having

the presence of mind to lie warrants inference of capacity to respond

voluntarily to an interrogator).

      Accordingly, we discern neither an abuse of discretion in finding the

facts nor an erroneous application of law to those facts in deeming

Appellant’s confession the product of a free and unconstrained choice.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2017




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