J-A13031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER FREEMAN

                            Appellant               No. 866 WDA 2013


             Appeal from the Judgment of Sentence January 9, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015155-2010


BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                FILED JULY 30, 2015

       Christopher Freeman appeals from the judgment of sentence imposed

on January 9, 2013, in the Court of Common Pleas of Allegheny County,

made final by the denial of post-sentence motions on April 24, 2013.    On

October 25, 2012, a jury convicted Freeman of second-degree murder,

robbery of a motor vehicle, burglary, and criminal conspiracy to commit

burglary.1     The court sentenced Freeman to an aggregate term of life

imprisonment.       On appeal, Freeman claims the court erred by failing to

suppress a statement he made to police and with respect to two evidentiary




____________________________________________


1
    18 Pa.C.S. §§ 2502(b), 3701(a), 3502(a), 903(a)(1), respectively.
J-A13031-15


issues.2   After a thorough review of the submissions by the parties, the

certified record, and relevant law, we affirm the judgment of sentence.

        The facts and procedural history are as follows:      During the late

evening on July 6, 2010, Freeman went over to the house of a friend, James

Lyle, to hang out on the porch, play video games, and smoke marijuana.

N.T., 10/23/2012, at 102.           Lyle’s home is located at 3124 Sacramento

Avenue, Pittsburgh, Pennsylvania in the Sheraden section of the city. The

victim, Ben Lewis, was neighbors with Lyle, and his house was located at

3126 Sacramento Avenue.              He apparently approached the two men,

mumbled something, and Freeman asked the victim to repeat what he had

said.    Id. at 104.      Lyle heard the victim say “you” and “nigger.”     Id.

Freeman became visibly upset and the victim retreated to his house. Id. at

105. Freeman then left Lyle’s home. Id.

        Several hours later, Lyle was in his dining room, at his computer,

when he noticed motion-sensor lights go on at the victim’s house.         Id. at

107. He heard three loud bangs and looked out the window. Lyle observed

three men in dark clothing, including Freeman, standing outside the victim’s




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2
  Based on the nature of Freeman’s claims, we have reordered them in our
analysis.




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home. Id. Freeman, who had a shirt covering the lower half of his face,3

told Lyle, “You didn’t see anything.” Id. at 109. He then pulled a gun from

his waistband, and pointed it at Lyle. Id. Lyle closed his blinds and went

back into his dining room. Id. at 110. Lyle then heard the sound of both of

the victim’s vehicles, a red Chevy pickup truck and a blue Pontiac Sunbird,

drive off. Id.4

       The next morning, Lyle went to the victim’s home and saw that the

front door had been damaged and the air conditioning unit was hanging out

the window.       Id. at 111.     He opened the door slightly and observed the

victim on the ground. Id. at 112. He called out the victim’s name, heard no

response, and went back to his house to call 911. Id.

       Detective    Christine     Williams     of   the   City   of   Pittsburgh   Police

Department responded to the scene and found the victim dead, as a result of

two gunshot wounds to the shoulder and chest. Id. at 37-38. The victim

also suffered from blunt force trauma to his scalp, at the top and back of his

head. Id. at 87. Detective Williams indicated the interior of the residence

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3
   Lyle testified he recognized Freeman based on his hair, height, eyes,
voice, and because he had on the same clothes as earlier in the evening.
Id. at 110-111.
4
    Two other witnesses, Joyce Maust and Iesha Griffin, testified that they
lived on the same street as the victim and Lyle, and they saw both of the
victim’s cars driving off down the street. Id. at 55, 66. Griffin also stated
that she saw two people in the Pontiac and one person in the truck. Id. at
67.



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looked like it had been ransacked, with furniture overturned, the doorjamb

pulled away from the frame of the door, and a large sliding window hanging

out the window frame. Id. at 35. Detective Williams also found three live

bullet casings, and two spent bullet casings in the same room. Id. at 36.

Police officers issued a “be on the lookout” report for the victim’s two

vehicles. Id. at 52.

       That same day, Detective John Lewis was taking part in an unrelated

narcotics investigation near the entrance to Sheraden Park when he

observed two men standing near to a red pickup truck talking to a third

man, who was behind the wheel of a blue Pontiac.          N.T., 10/24/2012-

10/25/2012, at 189, 192.             Detective Lewis identified Freeman and

Christopher Hunter as the two men standing outside the truck and the driver

of the Pontiac as Marshineak Manning. Id. at 193-194. The detective saw

Manning stop the car and talk to the two other men for a couple of minutes

before driving off. Id. 192, 197. Freeman was taken into custody as part of

that unrelated investigation. He was searched incident to arrest and a set of

keys was seized.       Id. at 200.    The car and the truck were found and

subsequently determined to be the victim’s missing vehicles.       The keys

found on Freeman fit in the lock and ignition for the red truck. Id. at 251-

253.

       When the officers investigating the victim’s murder learned that

Freeman had been arrested near the victim’s truck, they asked to speak with


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him on July 8, 2010. Id. at 228-230. He agreed to speak without a lawyer

and signed a Police Interrogation Warning Form.     Id. at 230.   During the

interrogation, Freeman maintained he did not know the victim, nor was he

familiar with the street where the victim lived. Id. When asked about the

truck, Freeman said he was never with a red truck and did not know

anything about a red truck. Id. at 231. He denied talking to anyone inside

a blue Pontiac or ever being in Sheraden Park.        Id.   The investigating

detective, James McGee, then asked Freeman, “‘Well, if you didn’t have

anything to do with the red pickup truck, why did you have the keys that

belonged to the red pickup truck?’” Id. Freeman said he had found those

keys in Sheraden Park. Id. When confronted with the fact that he had just

said that he had never been in the park, Freeman responded, “Well, I mean

over by the high school.” Id. at 232. After questioning, Freeman was not

arrested for the murder.

     Also during this time, Lyle did not tell the police about the events that

transpired the night before because he was “scared.” N.T., 10/23/2012, at

113. Shortly after the incident, Lyle said that a man approached him and

threatened him not to tell police what he knew about the murder.       Id. at

114-115.   The man also told Lyle that he had to send money to post

Freeman’s bond for his arrest on the other charges and to put money in

Freeman’s “book.”   Id. at 115.   Lyle paid the bond, but the threats and

demands for money continued. Id. at 152. In mid-October 2010, tired of


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the threats and demand for payments, Lyle went to the police, telling them

what he knew about Freeman and the night in question. Id. at 118. Lyle

also identified Manning as the individual that threatened him and forced him

to send money to Freeman. Id. at 121.

       Based on this evidence, Freeman was arrested for Lewis’s murder on

October 15, 2010. Although Freeman verbally agreed to waive his Miranda5

rights, he refused to sign the Police Interrogation Warning Form, stating he

was not comfortable signing the form. Id. at 237. With respect to the night

in question, Freeman again denied any knowledge of the victim, the street

where the victim lived, Lyle, and even Manning. Id. at 237.

       Freeman’s first jury trial was held on March 6, 2011 to March 13,

2011, but ended in a mistrial.6 His second jury trial began on October 23,

2012. Two days later, the jury convicted Freeman of second-degree murder,

robbery of a motor vehicle, burglary, and conspiracy to commit burglary.

The jury found him not guilty of robbery (serious bodily injury) and carrying

a firearm without a license.7          On January 9, 2013, the court sentenced

Freeman to life imprisonment without the possibility of parole for the murder

conviction, a concurrent five-year term for the robbery charge, and a
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5
    Miranda v. Arizona, 384 U.S. 436 (1966).
6
    The court determined a juror had conducted inappropriate internet
research related to the case. See N.T., 3/6/2011-3/13/2011, at 491-492.
7
    18 Pa.C.S. §§ 3701(a)(1)(i) and 6106(a)(1).



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concurrent two-year term for the burglary conviction. The court imposed no

further penalty with respect to the conspiracy charge. Freeman filed a post-

sentence motion, challenging the jury instructions, which was denied on

April 24, 2013. This appeal followed.8

       In his first argument, Freeman claims the trial court erred in denying

his motion to suppress his statements made to the police during a custodial

interrogation on October 15, 2010, because he did not voluntarily,

knowingly, and intelligently waive his Miranda rights under the totality of

the circumstances.       Freeman’s Brief at 40.   Freeman acknowledges that a

waiver of rights does not have to be in writing. Id. at 41. However, relying

on Commonwealth v. Youngblood, 307 A.2d 922 (Pa. 1973) and United

States v. Nielsen, 392 F.2d 849 (7th Cir. 1968), he states that although he

verbally waived his Miranda rights prior to the interrogation, his

subsequent actions established he did not knowingly and voluntarily waive

his rights. Freeman’s Brief at 40. Freeman points to the following: (1) he

expressed that he was “not comfortable” signing the waiver document; and

(2) he denied knowing anything and answered each question in the

negative.    Id. at 47-48.       He contends these circumstances should have

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8
    On May 30, 2013, the trial court ordered Freeman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Following several extensions of time, Freeman filed a concise statement on
April 30, 2014. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on July 28, 2014.



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raised a flag with the investigating detective because Freeman had

previously signed the form at the July interrogation but then refused to sign

the form at the October questioning. Id. at 48. Moreover, Freeman states

he was under arrest and he was only 18 years old at the time of the October

interview, which resulted in a coercive environment. Id. at 50-51. Freeman

concludes his statements were unduly prejudicial because they were used by

the Commonwealth as evidence of his consciousness of guilt. Id. at 52-53.

           The standard of review an appellate court applies when
     considering an order denying a suppression motion is well
     established.    An appellate court may consider only the
     Commonwealth’s evidence 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. Russo, 594 Pa. 119,
     126, 934 A.2d 1199, 1203 (2007) (citing Commonwealth v.
     Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004)). Where the
     record supports the factual findings of the suppression court, the
     appellate court is bound by those facts and may reverse only if
     the legal conclusions drawn therefrom are in error. Id. It is
     also well settled that the appellate court is not bound by the
     suppression court’s conclusions of law.               Id. (citing
     Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455
     (2003)). However, [w]hether a confession is constitutionally
     admissible is a question of law and subject to plenary review.
     Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879,
     881 (1998).

              Thus, this Court does not, nor is it required to, defer
        to the suppression court’s legal conclusions that a
        confession or Miranda waiver was knowing or voluntary.
        Instead, we examine the record to determine if it supports
        the suppression court’s findings of fact and if those facts
        support the conclusion that, as a matter of law, Appellant
        knowingly and intelligently waived his Miranda rights.
        Preliminarily, we note:

                 Regardless of whether a waiver of Miranda is
           voluntary, the Commonwealth must prove by a

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              preponderance of the evidence that the waiver is
              also knowing and intelligent.

              Miranda holds that “[t]he defendant may waive
              effectuation” of the rights conveyed in the warnings
              “provided the waiver is made voluntarily, knowingly
              and intelligently.”    The inquiry has two distinct
              dimensions. First the relinquishment of the right
              must have been voluntary in the sense that it was
              the product of a free and deliberate choice rather
              than intimidation, coercion or deception. Second,
              the waiver must have been made with a full
              awareness both of the nature of the right being
              abandoned and the consequences of the decision to
              abandon it. Only if the “totality of the circumstances
              surrounding the interrogation” reveals both an
              uncoerced choice and the requisite level of
              comprehension may a court properly conclude that
              Miranda rights have been waived.

          Commonwealth v. Cephas, 361 Pa. Super. 160, 522
          A.2d 63, 65 (Pa. Super. 1987) (emphasis in original).

       In the Interest of T.B., 2010 PA Super 197, 11 A.3d 500, 505-
       506 (Pa. Super. 2010).

Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012), aff’d, 105

A.3d 1194 (Pa. 2014).9

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9

       The trial court must assess the voluntariness of a confession
       based on the totality of the circumstances, looking at the
       following factors: (1) the duration and means of interrogation;
       (2) the defendant’s physical and psychological state; (3) the
       conditions attendant to the detention; (4) the attitude of the
       interrogator; and (5) “any and all other factors that could drain a
       person’s ability to withstand suggestion and coercion.”

Commonwealth v. Harvey, 812 A.2d 1190, 1198-1199 (Pa. 2002),
quoting Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998).
(Footnote Continued Next Page)


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      In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), cert. denied,

540 U.S. 1115 (2004), the Pennsylvania Supreme Court reviewed its prior

holdings in Commonwealth v. Bussey, 404 A.2d 1309 (Pa. 1979)

(plurality), and Commonwealth v. Hughes, 639 A.2d 763 (Pa. 1994),

regarding the requirement of an explicit waiver of Miranda rights.               In

Bomar, the Supreme Court departed from Bussey and its progeny,

indicating it was not a majority opinion and therefore, it did not constitute

binding precedent.        Bomar, 826 A.2d at 883, n.13.        Instead, the Bomar

court set forth the following:

      An explicit statement of waiver after being advised of [one’s]
      Miranda rights … is not necessary to a finding of waiver under
      the Fifth Amendment. The pertinent question is whether the
      defendant in fact knowingly and voluntarily waived the rights
      delineated in the Miranda case. Waiver can be clearly inferred
      from the actions and words of the person interrogated.

Id. at 843 (citations and quotations marks omitted).

      Subsequently, in Commonwealth v. Baez, 21 A.3d 1280, 1286 (Pa.

Super. 2011), appeal denied, 37 A.3d 1193 (Pa. 2012), a panel of this Court

reiterated the holding in Bomar that an explicit statement of wavier of

Miranda rights is not required.            Further, this Court explained, “[A]fter a

defendant is given his or her Miranda rights, a statement by the defendant
                       _______________________
(Footnote Continued)

“Moreover as factfinder, it is within the suppression court’s sole province to
pass on the credibility of witnesses and the weight to be accorded their
testimony. The factfinder is free to believe all, some, or none of the
evidence presented.” Commonwealth v. Griffin, 785 A.2d 501, 505 (Pa.
Super. 2001) (citations omitted).



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that he understands those rights followed by the answering of questions

posed by the interrogating officer constitutes a sufficient manifestation of a

defendant’s intent to waive those rights so as to satisfy state constitutional

protections.” Baez, 21 A.3d at 1286.10

       Turning to the suppression hearing, which occurred prior to Freeman’s

first trial, Detective MeGee testified to the following:

       Q. And when you arrested [Freeman], what did you do then?

       A. He was brought to our office, and once he was at the office,
       he was informed that he was under arrest for the murder of Ben
       Lewis, and at that time we presented him with a preinterrogation
       warning form. This form explains his rights to an attorney, and
       if he wants to talk to us without an attorney.

             Once the form was read to Mr. Freeman, he answered
       “yes” to the four questions, and then the form was given to him
       to read and then to sign it.



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10
   In Baez, supra, the trial court held the defendant had not expressly
waived his rights because (1) the police did not ask him if he was willing to
waive his rights, and (2) he did not execute a written waiver of his rights.
On appeal, this Court followed the pronouncement in Bomar and concluded:

       [N]either of these factors is a prerequisite for finding that a
       defendant has expressly waived his or her rights. The only
       difference between Bomar and the case before us is that in
       Bomar, the defendant twice indicated that he understood his
       rights whereas here, Defendant indicated so only once and then
       proceeded to answer the officer’s questions. We are satisfied
       that this too constitutes a sufficient manifestation of an intent to
       waive one’s Miranda rights.

Baez, 21 A.3d at 1286.



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           After Mr. Freeman read the form, he said he wasn’t
     comfortable with signing the form, but he was willing to talk to
     us without an attorney.

                                    …

     Q.   Detective McGee, how did you go about explaining to
     [Freeman] his constitutional rights?

     A. The rights were read off of the form. I went over each
     question, word for word, to Mr. Freeman, and at the end of each
     question I asked if he understood it and he said he did. At that
     point he answered “yes.”

           We went to the next question. Same thing. Read the
     question to him, he answered “yes” to all four questions, and
     then I said, after [I] was done reading the form to him, the form
     was given to Mr. Freeman to read it himself and once he read it I
     told him I needed him to sign it. He stated he was willing to
     speak to us without an attorney, but he wasn’t comfortable with
     the signing.

     Q. The final question in the series of questions that: Knowing
     these rights, are you willing to waive your right and answer
     questions without the presence of a lawyer?

     A. That is correct.

     Q. And how did he respond?

     A. He said, yes, he was.

     Q. And you wrote that on your form?

     A. Yes.

     Q. And then where he was asked to sign his signature you wrote
     “refused?”

     A. That is correct.

     Q. Was he then agreeable to talking to you about what you
     wanted to interview him about?


                                  - 12 -
J-A13031-15


     A. Yes, he was.

     Q. Were any threats or promises made to him to induce him to
     waive his right?

     A. No, ma’am.

     Q. Now, you had previously interviewed him a couple months
     earlier; is that right?

     A. That is correct.

     Q.   And did he on that occasion also waive his rights as
     explained to him on that form?

     A. He did.

     Q. Did he appear to be clear headed and not under the influence
     of any substances?

     A. Yes, ma’am.

N.T., 3/6/2011-3/13/2011, at 5-8. Furthermore, on cross-examination, the

following exchange took place:

     Q. What did you take his refusal to mean?

                                     …

     [A]. That he was willing to speak with us without an attorney,
     but he didn’t want to sign the form. He knew his rights, and
     knowing his rights, he was willing to speak to us without an
     attorney, but he didn’t want to sign the form.

     Q. Did the thought even occur to you, Detective, that by
     refusing to sign the form, he was indicating he wasn’t willing to
     execute an official waiver of his rights?

     A. No, sir.

     Q. By the way, the substance of that statement from October
     15th, would it be fair to say that there were no admissions in that
     statement?

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J-A13031-15



      A. I mean, he admitted – Well, he said he knew nobody. He
      didn’t know anything about it. He didn’t admit to anything, but
      he denied everything.

      Q. He denied everything?

      A. That is correct.

      Q. He didn’t make any affirmative confession to committing the
      offense?

      A. That is correct.

Id. at 10-11.

      In denying Freeman’s motion to suppress, the trial court found the

following:

             On March 2, 2012, the Friday before jury selection was to
      begin on Monday, Freeman’s lawyer filed a 4 sentence motion to
      suppress. He sought to exclude an alleged statement homicide
      detectives obtained from Freeman after his arrest on October 15,
      2010. Freeman claimed his statement was not a “knowing,
      intelligent and voluntary decision”. To rebut this assertion of
      illegality, the government solicited the testimony from the
      homicide detective who spoke with Freeman. He was the only
      witness. His testimony consumed a mere 10 pages of transcript.
      [Detective] McGee told the Court he arrested Freeman pursuant
      to a warrant. He brought Freeman to the police station and read
      him a listing of rights that Freeman had. After each question,
      Freeman said “Yes”. The form was then handed to him. McGee
      testified it appeared as if Freeman read the form. Then Freeman
      said he wasn’t comfortable signing the form but he was willing to
      talk without an attorney.

            The unique factual nugget from this case is that this was
      not the first time Freeman spoke with police about this matter.
      He was questioned on July 7, 2010. On that occasion, Freeman
      had no problem signing the form. Here, on October 15 th, he did
      not sign the form.        The defense attempts to use the
      juxtaposition of these two polar opposite facts as contributing to


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      Freeman not waiving his rights as set forth in the Miranda v.
      Arizona decision.

                                      …

             The government, through the testimony of [Detective]
      McGee, discharged its burden.7 [Detective] McGee read the
      warnings to Freeman and he received an affirmative answer
      after each one. Freeman was then provided the opportunity to
      read the form. By all appearances he did. When asked to sign
      the form memorializing his oral answers, he chose not to. But,
      in conveying his unwillingness to sign the form, he said he was
      willing to speak to law enforcement without an attorney. These
      facts, when viewed through the lens of precedent, show no error
      by this Court in denying the request to suppress.            See,
      Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011),
      reargument denied, 2011 Pa. Super. LEXIS 2220, appeal denied,
      2012 Pa LEXIS 77 (Pa. 2012)(“[A]fter a defendant is given his or
      her Miranda rights, a statement by the defendant that he
      understands those rights followed by the answering of questions
      posed by the interrogating officer constitutes a sufficient
      manifestation of a defendant’s intent to waive those rights so as
      to    satisfy   state    constitutional  protections.”),   citing,
      Commonwealth v. Bussey, 404 A.2d 1309 (Pa. 1979);
      Commonwealth v. Hughes, 639 A.2d 763 (Pa. 1994) and
      Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).
         7
             The Court notes Freeman’s simplistic motion fails to
         raise a state constitutional claim. In fact, there is no
         mention of any constitutional provision that was violated.
         The only level of specificity comes in the [Statement of
         Errors], III.   Nevertheless, the Court views Freeman’s
         claim as raising a 5th Amendment violation only.

Trial Court Opinion, 7/28/2014, at 3-5 (record citations omitted).

      We agree with the court’s finding. Upon careful review of the record

and precedent, we conclude Freeman manifested an understanding of his

Miranda rights and a desire to waive them, despite not signing the waiver

document.     As Detective McGee testified, he gave Freeman his Miranda


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J-A13031-15


warnings and Freeman orally agreed to waive those rights and speak to the

detective without an attorney present.             While Freeman indicated he was

“uncomfortable” signing the waiver document, he did not express that he

was “uncomfortable” speaking without an attorney.             Likewise, during the

entire interrogation, Freeman never stopped the questioning or indicated

that he might want to talk to an attorney.             Moreover, Freeman did not

appear to be under the influence of drugs or alcohol, did not argue that the

police threatened him in any way, and had prior contact with the police

based on the July interview. It also bears emphasizing that Freeman did not

make an affirmative confession, in that he denied all knowledge and

involvement related to the events on the night in question. As such, one can

reasonably conclude Freeman’s decision to waive his Miranda rights was

voluntarily, knowingly and intelligently made.11

       Furthermore, we find Freeman’s reliance on Nielsen and Youngblood

is misplaced.     In Nielsen, the defendant was arrested and charged with

aiding and abetting the transportation in interstate commerce of a stolen

____________________________________________


11
    See also Commonwealth v. Cohen, 53 A.3d 882 (Pa. Super. 2012)
(finding defendant’s conduct during his first interrogation with the police
manifested an understanding and valid waiver of his Miranda rights when
he freely spoke to the investigating detective based on the following: (1) he
had prior experience with the criminal justice system; (2) his behavior
during the first interrogation demonstrated his recognition and invocation of
his rights; (3) he refused to answer when the detective asked him if he
understood his Miranda rights, thereby acknowledging his right to remain
silent; and (4) he ended the interrogation when he no longer wished to talk).



                                          - 16 -
J-A13031-15


motor vehicle which he knew was stolen, in violation of 18 U.S.C. §§ 2,

2312.      He was then given Miranda warnings twice, first at his house and

then at the F.B.I. office. Nielsen, 392 F.2d at 851. The defendant read a

statement of these rights, which were contained in a “waiver of rights” form.

“According to the agent, the defendant then said: ‘I am not going to sign

this document. I have an attorney, * * * and I am not signing anything,

including this form, until I have occasion to talk to [my attorney].’” Id. The

agent then “offered to let the defendant call his attorney, but the defendant

declined, saying, ‘it could wait until later on in the morning.’”    Id.    The

defendant then told the agent that the questioning could proceed.           Id.

Following this statement, the agent said that he asked the defendant five

questions concerning his knowledge about another suspect and the stolen

car.    “To all questions, the defendant gave negative answers.”      Id.   On

appeal, the United States Court of Appeals for the Seventh Circuit reversed,

stating:

        Here the defendant’s refusal to sign the waiver form, followed by
        an apparent willingness to allow further questioning, should have
        alerted the agents that he was assuming seemingly contradictory
        positions with respect to his submission to interrogation.
        Instead of accepting the defendant’s equivocal invitation, the
        agents should have inquired further of him before continuing the
        questioning to determine whether his apparent change of
        position was the product of intelligence and understanding or of
        ignorance and confusion. However, no further inquiry took
        place. In the absence of such an inquiry, we are compelled to
        conclude that the defendant’s negative responses to the
        questions asked him were not made after a knowing and
        intelligent waiver of his rights. Consequently, the trial court
        erred in admitting the testimony of the subsequent interrogation.

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Id. at 853.

      In Youngblood, the defendant was charged with murdering his

sister’s husband.    While in custody, he was given the standard Miranda

warnings and at that time, he said he did not wish to say anything until he

had talked with his sister.    Youngblood, 307 A.2d at 924.         After the

defendant’s sister was brought into the room, the warnings were re-read to

the defendant.      The defendant indicated he wanted an attorney and the

questioning stopped. The sister then left, stating she would return with an

attorney. Several minutes later, “a detective entered the interrogation room

where the defendant had been left alone and began to fill out an ‘intelligence

summary’ consisting of the defendant's name, age, address, employment,

and other background information of general nature. After answering two or

three questions on the form, the defendant told the detective he wanted to

recount everything that had happened.”       Id. He said “the only reason he

had not done so sooner was in order to satisfy his sister, who was concerned

and tired, so that she would return home and rest.” Id. Without a further

reading of the Miranda warnings, the defendant confessed to killing his

brother-in-law. On appeal, citing Nielsen, the Pennsylvania Supreme Court

reversed and granted a new trial based on the following:

      [Defendant], a 15-year-old youth “of mildly defective
      intelligence”, had been in police custody for several hours and
      was the prime suspect in the murder of his brother-in-law. He
      had already once elected to remain silent and to have his sister
      seek to find an attorney. When he suddenly changed his mind

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         and exhibited a willingness to talk, the police should have been
         alert to the danger of accepting a statement without making as
         certain as possible that the suspect understood his rights and
         wished to waive them.… Whatever positive inference concerning
         appellant’s comprehension of his rights can be drawn from his
         initial choice to remain silent and to seek the services of an
         attorney is undermined by the complete change of face which
         came only a few minutes later. While it is true that the reversal
         of defendant’s position was initiated by him, his explanation that
         his sister was tired and that he only wanted her to go home
         hardly suffices as proof of a knowing and intelligent waiver of
         constitutional rights.

Id. at 927. Unlike the defendants in Nielsen and Youngblood, Freeman

never invoked his right to stop the interrogation by requesting an attorney

at any point during the questioning.      Accordingly, both cases are factually

distinguishable from the present case. Therefore, Freeman’s first argument

fails.

         In his second argument, Freeman claims the trial court abused its

discretion by prohibiting defense counsel from impeaching Lyle with

evidence that in 2008, Lyle was convicted of aggravated assault and criminal

solicitation to rape and murder his own mother.          Freeman’s Brief at 24.

Freeman states:

         While not classified as a crimen falsi conviction, this evidence
         nevertheless should have been admitted to impeach Lyle’s
         testimony that he did not immediately disclose to police what he
         had seen out of a fear for his family’s safety. Additionally, such
         evidence would have bolstered the defense’s argument that Lyle
         possessed an ulterior motive for eventually coming forward to
         police.

Id. Moreover, Freeman asserts:




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J-A13031-15


     Lyle “opened the door” to questions regarding his alleged
     concern for his family members when he repeatedly volunteered
     this information to explain why it took him three-months to
     speak to police. Because any definition of “family” would include
     one’s mother, Lyle’s alleged concern for his family would have
     been directly called into question by his conviction for soliciting
     the rape and murder of his own mother.

Id. at 29-30.   Additionally, Freeman argues the evidence shows that Lyle

may have feared that the police would suspect him in connection with the

victim’s death and test for the presence of his DNA at the scene. Id. at 31.

     We begin with our well-settled standard of review:

     “Questions regarding the admission of evidence are left to the
     sound discretion of the trial court, and we, as an appellate court,
     will not disturb the trial court’s rulings regarding the admissibility
     of    evidence     absent     an    abuse     of   that   discretion.”
     Commonwealth v. Russell, 2007 PA Super 376, 938 A.2d
     1082, 1091 (Pa. Super. 2007). An abuse of discretion is not
     merely an error of judgment; rather, discretion is abused when
     “the law is overridden or misapplied, or the judgment exercised
     is manifestly unreasonable, or the result of partiality, prejudice,
     bias, or ill-will, as shown by the evidence or the record.”
     Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060,
     1076 (Pa. 2002).

Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014).

     Impeachment evidence is evidence which is presented as a
     means of attacking the witness’ credibility. There are several
     principal ways to attack a witness’ credibility: evidence offered to
     attack the character of a witness for truthfulness, evidence
     offered to attack the witness’ credibility by proving bias, interest,
     or corruption, evidence offered to prove defects in the witness’
     perception or recollection, and evidence offered to contradict the
     witness’ testimony.




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J-A13031-15


Commonwealth v. Palo, 24 A.3d 1050, 1055-1056 (Pa. Super. 2011)

(citation omitted), appeal denied, 34 A.3d 828 (Pa. 2011).

      Pennsylvania Rule of Evidence 609 addresses impeachment of a

witness by evidence of a conviction, in pertinent part, as follows:

      Rule 609. Impeachment by evidence of conviction of crime

      (a) In General. For the purpose of attacking the credibility of
      any witness, evidence that the witness has been convicted of a
      crime, whether by verdict or by plea of guilty or nolo contendere,
      must be admitted if it involved dishonesty or false statement.

Pa.R.E. 609(a).    Moreover, Pennsylvania Rule of Evidence 608 governs

evidence regarding a witness’s character for truthfulness or untruthfulness

and provides:

      Rule 608.      A    Witness’s    Character   for   Truthfulness   or
      Untruthfulness

      (a) Reputation Evidence. A witness’s credibility may be
      attacked or supported by testimony about the witness’s
      reputation for having a character for truthfulness or
      untruthfulness. But evidence of truthful character is admissible
      only after the witness’s character for truthfulness has been
      attacked. Opinion testimony about the witness’s character for
      truthfulness or untruthfulness is not admissible.

      (b) Specific Instances of Conduct. Except as provided in Rule
      609 (relating to evidence of conviction of crime),

      (1) the character of a witness for truthfulness may not be
      attacked or supported by cross-examination or extrinsic evidence
      concerning specific instances of the witness’ conduct; however,

      (2) in the discretion of the court, the credibility of a witness who
      testifies as to the reputation of another witness for truthfulness
      or untruthfulness may be attacked by cross-examination
      concerning specific instances of conduct (not including arrests)


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J-A13031-15


     of the other witness, if they are probative of truthfulness or
     untruthfulness; but extrinsic evidence thereof is not admissible.

Pa.R.E. 608. Lastly, we are also guided by the following:

     “Even if a crime would not in and of itself be crimen falsi, we
     would consider it as such if it was committed in part through the
     use of false written or oral statements.” Commonwealth v.
     Vitale, 445 Pa. Super. 43, 664 A.2d 999 (Pa. Super. 1995),
     appeal denied, 544 Pa. 607, 674 A.2d 1071 (1995).

           Additionally, “Cross-examination may be employed to test
     a witness’ story, to impeach credibility, and to establish the
     witness’ motive for testifying.” Commonwealth v. Robinson,
     507 Pa. 522, 526, 491 A.2d 107, 109 (1985). “A witness may
     be cross-examined as to any matter tending to show the interest
     or bias of that witness.” Commonwealth v. Nolen, 535 Pa. 77,
     83, 634 A.2d 192, 195 (1993). “It is particularly important that,
     where the determination of a defendant’s guilt or innocence is
     dependent upon the credibility of a prosecution witness, an
     adequate opportunity [must] be afforded to demonstrate
     through cross-examination that the witness is biased.”
     Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978
     (1992).

Commonwealth v. Hyland, 875 A.2d 1175, 1186 (Pa. Super. 2005),

appeal denied, 890 A.2d 1057 (Pa. 2005).

     Here, the trial court found the following:

            Before cross-examination of Lyle began, the jury was
     removed. Defense counsel sought permission to cross-exam
     Lyle about a 2008 conviction for aggravated assault and
     solicitation to commit assault, rape and murder. The supposed
     victim of those crimes was his mother, according to the proffer.
     The government’s response referenced the Court’s prior ruling in
     the first trial that ended in a mistrial. That ruling did not take
     place during the first trial but during resolution of some oral
     motions in limine. The government’s opposition was two-fold.
     This crime does not denote dishonesty or false statement and
     thus Rule 609 excludes it.        The government also argued,
     alternatively, that Rule 608 prohibits specific instances of
     conduct to impeach.

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J-A13031-15



           Case law interpreting Pa.R.E. 609 has ruled a conviction
     for aggravated assault is not a crime denoting dishonesty or
     false statement. Commonwealth v. Burton, 417 A.2d 611, 613-
     614 (Pa. 1980) (“Assault with intent to kill and murder are not
     [crimen falsi] crimes.[” ]); Commonwealth v. Grimm, 378 A.2d
     377, 380 (Pa. Super. 1977) (“[C]onvictions showing assaultive
     or disorderly conduct do not involve false statement or
     dishonesty. They are completely irrelevant to the issue of the
     witnesses’ veracity. It was, therefore, improper for the court to
     allow this form of impeachment.”); Commonwealth v. Bracey,
     831 A.2d 678, 682 (Pa. Super. 2003) (“[W]e detect no basis
     upon which to find that the trial judge erred or abused his
     discretion in refusing to allow defense counsel to cross examine
     the victim about his prior conviction for aggravated assault.”);
     Commonwealth v. Moore, 715 A.2d 448, 452 (Pa. Super. 1998)
     (“[B]ecause Moore’s previous aggravated assault conviction is
     not in the nature of crimen falsi and does not fall within the
     exceptions related to other crime evidence, the Commonwealth
     could not have introduced this conviction.”). Lyle’s conviction is
     not a crime denoting dishonesty or false statement and was
     properly excluded under Rule 609.

           This past event in Lyle’s life is also excludable under Rule
     608(b)(1). That Rule prohibits attacking a witness’s character
     for truthfulness with extrinsic evidence of specific instances of
     conduct. What Freeman wanted to do here was directly at odds
     with this rule. This Court acted consistent with Pennsylvania law
     when it prevented Freeman from cross-examining this witness
     on his prior conviction for aggravated assault and solicitation to
     commit assault, rape and murder. Commonwealth v. Hanible,
     30 A.3d 426, 456 (Pa. 2013) (“Pa.R.E. 608(b)(1) precludes
     attacks upon the character of a witness based upon specific
     instances of conduct of the witness.”).

Trial Court Opinion, 7/28/2014, at 7-9 (record citations and footnotes

omitted).

     We again agree with the trial court’s rationale.            The court properly

concluded   that   pursuant   to   Rule   609   Lyle’s   prior    convictions   were

inadmissible because aggravated assault and solicitation to commit assault,

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J-A13031-15


rape and murder are not crimes involving dishonesty or false statement.

See Pa.R.E. 609; see also Commonwealth v. Patterson, 91 A.3d 55, 68-

69 (Pa. 2014), cert. denied, 135 S. Ct. 1400 (U.S. 2015).                Likewise,

pursuant to Rule 608, specific instances of his conduct, other than crimen

falsi, were also inadmissible. See Pa.R.E. 608. Accordingly, we find that the

trial court did not err when it refused to admit evidence of the witness’s prior

convictions.

       Furthermore, any error would have been harmless12 because as

Freeman points out in his brief, he was able to cast doubt on the credibility

of Lyle’s story by establishing that Lyle failed to implicate Freeman before

the alleged threats began and after the threats ended, and by eliciting

testimony that the victim and Lyle had an altercation a day or two before the

incident.   See Freeman’s Brief at 30-31.          Likewise, as Freeman indicates,
____________________________________________


12

       An error is harmless only if the appellate court is convinced
       beyond a reasonable doubt that the error is harmless. An error
       cannot be held harmless unless the appellate court determines
       that the error could not have contributed to the verdict.
       Whenever there is a reasonable possibility that an error might
       have contributed to the conviction, the error is not harmless.
       Thus, ‘for a reviewing court to conclude that an error is
       harmless, it must be convinced beyond a reasonable doubt that
       the error did not contribute to the verdict.’ The burden of
       establishing that an error is harmless beyond a reasonable doubt
       rests with the Commonwealth.

Commonwealth v. Rush, 605 A.2d 792, 794 (Pa. 1992) (citations omitted;
italics in original).




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J-A13031-15


evidence of Lyle’s crimen falsi convictions were introduced, including his

2004 federal conviction for access device fraud,13 which would have also

impeached his credibility.14         Moreover, of great importance, Lyle did not

testify that the threats were specifically about his mother; rather he stated

the initial threat was “[Manning] knows where my family is.”               N.T.,

10/23/2012, at 114. Indeed, we find Lyle’s convictions involving his mother

are irrelevant because Manning threatened Lyle with harm to his entire

family, and Lyle paid the money to protect them. Therefore, the probative

value of evidence did not outweigh the prejudicial effect.          Accordingly,

Freeman’s second argument fails.

       In his final argument, Freeman complains the court abused its

discretion by prohibiting defense counsel from impeaching Lyle with

evidence that he knowingly submitted a fraudulent letter to a United States

District Court judge, Alan N. Bloch, during a supervised release hearing in

2006. Freeman’s Brief at 35. By way of background, and as stated above,

Lyle was convicted in 2004 for the federal crime of access device fraud. He

was sentenced to a term of incarceration followed by a period of supervised

release.    At a December 13, 2006, supervised release hearing, it was

purported that Lyle submitted a fraudulent letter from his employer.        The

____________________________________________


13
     N.T., 10/23/2012, at 122, 154-157.
14
     See Freeman’s Brief at 33-34.



                                          - 25 -
J-A13031-15


federal court revoked Lyle’s supervised release and sentenced him to a

period of two years’ incarceration.    N.T., 3/6/2011-3/13/2011, at 33-34.

Freeman submits that although the fraudulent letter incident is not a

conviction per se, it was the functional equivalent of a conviction,

considering it was an act of dishonesty under oath and, therefore, satisfies

the purpose under Rule 609 as an extension of his underlying initial crimen

falsi conviction. Id. at 37-39.

      We are guided by the evidentiary standard of review and rules as set

forth above.   The trial court pointed out that the evidence at issue was

raised prior to the first trial but was not discussed at the second trial. Trial

Court Opinion, 7/28/2014, at 5-6. While the court did not find waiver, it did

opine:

      With waiver surely lurking in the weeds, the exclusion of this
      evidence was a basic application of Pa.R.E. 609. Subsection (a)
      says that evidence “that the witness has been convicted of a
      crime … must be admitted if it involved dishonesty or false
      statement.” Pa.R.E. 609(a). Lyle was not convicted of a crime
      arising from his supervised release hearing.      Without the
      underlying conviction, the Rule 609 door is shut and will not
      open for Freeman.

Id. at 6 (emphasis in original).

      We agree with the trial court. Regardless of waiver, it is apparent this

letter did not result in a conviction. Rather, it was an improper act that led

to Lyle’s parole being revoked on an underlying crime, and evidence of the

underlying conviction already was admitted. See also Commonwealth v.

Treadwell, 911 A.2d 987, 990-991 (Pa. Super. 2006) (noting Pennsylvania

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J-A13031-15


Rule of Evidence 609(b) was modeled after and differs only slightly from

Federal Rule of Evidence 609(b), and that the “federal courts have

determined Federal Rule 609(b) does not equate probation or parole with

confinement.”). Therefore, the court did not abuse its discretion in excluding

this evidence. Accordingly, Freeman’s final argument fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:7/30/2015




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