J-A26024-18

                                   2018 PA Super 352



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWARD LOWE BAKER, JR.                     :
                                               :
                       Appellant               :   No. 221 WDA 2018

             Appeal from the Judgment of Sentence April 24, 2017
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0001284-2016


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY SHOGAN, J.:                              FILED DECEMBER 24, 2018

       Edward Lowe Baker, Jr. (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of first-, second-, and third-

degree murder, rape by forcible compulsion, burglary, and criminal trespass.1

We affirm.

       We summarize the facts of record as follows.          Appellant’s former

girlfriend, Addaleigh Huzyak (“the Victim”) ended their six-month relationship

in late May of 2016. N.T., 3/31/17, at 164–165, 182. Late in the evening on

June 5, 2016, Appellant entered the Victim’s apartment and waited for her to

come home from her shift at work, which ended at 11:00 p.m. Id. at 201–

205. When the Victim arrived home, she was annoyed to see Appellant and

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1  18 Pa.C.S. §§ 2502(a–c), 3121(a)(1), 3502(a)(2), and 3503(a)(1)(i),
respectively.
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said she was going to call for help. Id. at 205–207. Appellant shot her in the

face to disable her, slit her throat twice, fatally shot her in the back of the

head, and then had sexual intercourse with her.            Id. at 207–209 and

Commonwealth Exhibit 1 (Appellant’s videotaped statement).              Appellant

escaped through a window. Id. at 211.

        Authorities apprehended Appellant in Winchester, Kentucky, on June 7,

2016.      Pennsylvania State Troopers Jason Domenick and Christopher

Birckbichler proceeded to Winchester that day and interviewed Appellant in

the Winchester Police Station. N.T. Suppression, 10/21/16, at 9–17. Prior to

the interview, Trooper Birckbichler discussed with Appellant his Miranda2

rights, and Appellant completed a waiver form. Id. at 21–23, Commonwealth

Exhibits 1, 2. During the interview, Appellant confessed to killing the Victim.

Id. at Commonwealth Exhibit 1. Appellant was extradited to Pennsylvania the

next day. Id. at 36. Prior to trial, Appellant filed a motion to suppress his

confession and a petition for writ of habeas corpus, which the trial court

denied. Omnibus Pretrial Motion, 9/21/16, at II, III; Order, 10/25/16.

        Following his trial and conviction, the trial court sentenced Appellant to

life imprisonment on the first-degree murder conviction and a consecutive ten

to twenty years of incarceration on the rape by forcible compulsion conviction.

Order, 4/27/17.         No further penalty was imposed on the remaining



____________________________________________


2   Miranda v. Arizona, 384 US 436 (1966).

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convictions.     Appellant filed post-sentence motions, which the trial court

denied.      Motion for Post-Sentence Relief, 5/4/17; Supplemental Motion for

Post-Sentence Relief, 11/3/17; Order, 1/19/18.           This appeal followed.

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for our consideration:

      I.       Whether the Commonwealth failed to present sufficient
               evidence to prove beyond a reasonable doubt that
               Appellant, Edward Lower Baker, Jr., was guilty of Murder of
               the First Degree, Rape By Forcible Compulsion, Burglary,
               and Criminal Trespass?

      II.      Was the jury verdict of guilty against the weight of the
               evidence presented at trial?

      III.     Whether the Trial Court erred in denying Appellant’s Motion
               to Suppress?

Appellant’s Brief at 5.

      In his first issue, Appellant challenges the sufficiency of the evidence

supporting his convictions of first-degree murder, rape by forcible compulsion,

burglary, and criminal trespass.      Appellant’s Brief at 14–17.    Because a

determination of evidentiary sufficiency presents a question of law, our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing the

sufficiency of the evidence, we must determine whether the evidence admitted

at trial and all reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient to prove

every element of the offense beyond a reasonable doubt. Commonwealth


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v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017).                    “[T]he facts and

circumstances established by the Commonwealth need not preclude every

possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521,

525–526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson-Dewar,

829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-

finder to determine the weight to be accorded to each witness’s testimony and

to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107

A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its

burden of proving every element of the crime by means of wholly

circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.

Super. 2016).     Moreover, as an appellate court, we may not re-weigh the

evidence   and    substitute     our   judgment     for   that   of   the    fact-finder.

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

      Appellant first challenges the sufficiency of the evidence supporting his

conviction of first-degree murder. An individual commits first-degree murder

when he intentionally kills another human being; an intentional killing is

defined as a “willful, deliberate and premeditated killing.” 18 Pa.C.S. §§ 2501,

2502(a),   (d).   To   sustain    a    conviction   for   first-degree      murder,   the

Commonwealth must prove that: (1) a human being was unlawfully killed; (2)

the accused was responsible for the killing; and (3) the accused acted with

malice and a specific intent to kill. Commonwealth v. Ballard, 80 A.3d 380,

390 (Pa. 2013). A jury may infer the intent to kill “based on the accused’s


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use of a deadly weapon on a vital part of the victim’s body.” Sanchez, 36

A.3d at 37.

       Appellant argues:         “When considering that the Appellant readily

conceded at trial that he shot and ultimately killed [the Victim], the question

for the jury was whether the acts committed constituted First-Degree Murder.

The record is not able to establish all the requisite elements for First-Degree

Murder, as the Appellant lacked the malice required for such a finding.”

Appellant’s Brief at 14. We rely on the trial court’s rejection of Appellant’s

claim that he lacked malice, as set forth in its Pa.R.A.P. 1925(a) opinion:

             In support of establishing the requisite intent, the
       Commonwealth presented and the jury heard ample evidence
       indicating that [Appellant] planned to murder the [V]ictim. For
       example, the Commonwealth presented a series of text and
       Facebook messages sent shortly after an argument between
       [Appellant] and the [V]ictim in which [Appellant] was attempting
       to acquire a firearm. The jury heard testimony and viewed
       evidence of [Appellant’s] research prior to the murder regarding
       extradition and Google searches inquiring “How to Knock
       Someone Out Fast” approximately one hour before the murder.
       The jury saw photos of the [V]ictim’s window—the very window
       [Appellant] used as an exit after the crime—snapped from
       [Appellant’s] cell phone shortly before the murder. This evidence
       alone, although not exhaustive,[3] clearly is sufficient to enable a
       jury to find intentional premeditation. As to the finding of guilt of
       Murder of the First Degree, the jury was also presented with a
____________________________________________


3 By his own admission, Appellant took photographs of the Victim’s apartment
days before the homicide and conducted online research about countries that
do not have extradition treaties with the United States. Four days before the
homicide, Appellant obtained a gun. On the day of the homicide, Appellant
parked his vehicle at a distance from the Victim’s residence to avoid detection.
He gained access to the Victim’s apartment without her permission while she
was at work. He waited in the apartment, armed with a loaded gun. N.T.,
3/31/17, at 185, 190–191, 193, 199–205, and Commonwealth Exhibit 1.

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J-A26024-18


      recorded statement from [Appellant] claiming that he first shot
      the [V]ictim to debilitate her, slit her throat two times, and then
      shot her a second time, resulting in death.

Trial Court Opinion, 4/2/18, at 3–4.

      We have reviewed the record, including the complete notes of trial

testimony. The evidence presented and the inference drawn from Appellant’s

use of a deadly weapon on vital parts of the Victim’s body support the first-

degree murder conviction. Appellant’s first sufficiency claim lacks merit.

      Next, Appellant challenges the sufficiency of the evidence supporting his

conviction of rape by forcible compulsion. Appellant’s Brief at 14–15. The

Pennsylvania Crimes Code defines rape, in relevant part, as follows:

      (a) Offense defined.—A person commits a felony of the first
      degree when the person engages in sexual intercourse with a
      complainant:

         (1) By forcible compulsion.

18 Pa.C.S. § 3121(a)(1). “Forcible compulsion” is “[c]ompulsion by use of

physical, intellectual, moral, emotional or psychological force, either express

or implied. The term includes, but is not limited to, compulsion resulting in

another person’s death, whether the death occurred before, during or after

sexual intercourse.” 18 Pa.C.S. § 3101.

      According to Appellant, “[t]he fact that the [Victim] was deceased at the

time the intercourse occurred made it impossible for the Appellant to commit

the crime of Rape. Due to same, the record is unable to establish the requisite




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J-A26024-18


elements for Rape by Forcible Compulsion.”       Appellant’s Brief at 15.   In

response, the Commonwealth explains:

            Appellant . . . admitted to having sex with the Victim after
     he shot her in the head for the second time. Dr. Lukasevic
     testified that the Victim could have died within minutes, but
     possibly up to an hour after Appellant administered the final shot.
     There is no way for the Commonwealth to pinpoint with absolute
     certainty whether the Victim was alive at the time of penetration.
     The [rape by forcible compulsion] statute clearly contemplates
     this exact situation—where it is virtually impossible for the
     Commonwealth to show whether the [V]ictim was alive, dying, or
     dead at the time of the sexual act. Because . . . the statute does
     not require the Commonwealth to prove sex occurred prior to a
     victim’s death, the evidence was sufficient to find Appellant guilty
     of that crime.

Commonwealth’s Brief at 13–14 (internal citations omitted).

     We rely again on the trial court’s rejection of Appellant’s claim, as set

forth in its memorandum disposing of Appellant’s habeas corpus petition:

     With respect to the Rape by Forcible Compulsion charge,
     [Appellant] argued that the Commonwealth failed to present
     evidence that the alleged penetration occurred while the victim
     was alive, and that penetration after a victim’s death is not within
     the definition of rape. See Com. v. Sudler, 436 A.2d 1376 (Pa.
     1981). However, while the Sudler case has not been overturned,
     Legislative amendments since the case was decided have made
     the decision inoperative. Specifically, in 1995 the Legislature
     amended Section 3101 to include a definition for forcible
     compulsion:

           Compulsion by use of physical, intellectual, moral,
           emotional or psychological force, either express or
           implied. The term includes, but is not limited to,
           compulsion resulting in another person’s death,
           whether the death occurred before, during or after
           sexual intercourse.

     18 Pa. C.S. § 3101. Thus, the statutory language makes clear
     that the time of [the V]ictim’s death is not dispositive in the

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      outcome of the charge.          Furthermore, whether the alleged
      penetration occurred before or after the [V]ictim’s death, or at all,
      is a question of fact for the fact-finder to determine at trial. There
      is sufficient evidence to establish that the Commonwealth met its
      burden on the Rape charge . . . .

Trial Court Memorandum Opinion and Order, 10/25/16, at unnumbered 4.

      We have reviewed the certified record and relevant legal authority. The

evidence presented and the statutory language support the conviction of rape

by forcible compulsion. Thus, Appellant’s second sufficiency claim lacks merit.

      Appellant’s third sufficiency challenge is to the evidence supporting his

burglary conviction. Appellant’s Brief 15. “Burglary is defined as the act of

entering or occupying a structure with intent to commit a crime therein.”

Commonwealth v. Magnum, 654 A.2d 1146, 1147 (Pa. Super. 1995); 18

Pa.C.S. § 3502(a)(2).     A “totality of the circumstances” approach is used

where “[t]he Commonwealth must establish, as part of its evidentiary burden,

additional evidence that goes beyond the mere breaking in of a door or

window.” Commonwealth v. Wilamowski, 633 A.2d 141, 144 (Pa. 1993).

      According to Appellant, “the record does not demonstrate that Appellant

had formed the intent to commit a crime in [the Victim’s] apartment at the

time he entered the structure.” Appellant’s Brief at 16. The Commonwealth

counters that, viewing the evidence in the light most favorable to it, “Appellant

entered an occupied structure at the same time as he possessed the intent to

kill the Victim.”    Commonwealth’s Brief at 12.           We agree with the

Commonwealth.


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      More than one week before the homicide, the Victim ended her

relationship with Appellant.   N.T., 3/31/17, at 182.   Four days before the

homicide, Appellant purchased a Jennings .22 caliber handgun, which was

consistent with the shell casings recovered at the homicide scene. Id. at 190–

191, 193; N.T. 3/28/17, at 49–52 and Commonwealth’s Exhibit 56a. On the

night of the homicide, Appellant parked his vehicle away from the Victim’s

apartment building to avoid detection. N.T., 3/31/17, at 203. Using his copy

of the Victim’s apartment key, Appellant entered the victim’s apartment,

armed with a loaded gun, when the Victim was not at home, and without her

permission. Id. at 167, 172, 185, 202, 204. While waiting for the Victim to

return home, Appellant conducted web searches on how to knock a person

unconscious and kill them. Id. at Commonwealth Exhibit 1.

      Viewing this circumstantial evidence in the light most favorable to the

Commonwealth as the verdict winner, we conclude that the evidence was

sufficient to establish beyond a reasonable doubt that Appellant entered the

Victim’s apartment with an intent to commit a crime therein, i.e., homicide.

Appellant’s third sufficiency challenge lacks merit.

      Appellant’s final sufficiency challenge is to the evidence supporting his

conviction for criminal trespass. Appellant’s Brief at 17. Criminal trespass is

defined, in relevant part, as follows:

      (1) A person commits an offense if, knowing that he is not licensed
      or privileged to do so, he:




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          (i) enters, gains entry by subterfuge or surreptitiously
          remains in any building or occupied structure or separately
          secured or occupied portion thereof; or

18 Pa.C.S. § 3503(a)(1)(i).

       Appellant argues: “Fatal to the verdict is that the landlord had sent the

Appellant a letter detailing the passcode for access to the building. Due to

same, Appellant lacked the requisite intent to support a conviction for Criminal

Trespass, as he did not know he was not licensed or privileged to enter the

structure.” Appellant’s Brief at 17 (internal citation omitted).

       We reject Appellant’s final sufficiency challenge as disingenuous.    In

reaching this conclusion, we rely on the trial court’s analysis:

       The Commonwealth presented and the jury heard evidence that
       [Appellant] was explicitly told by the sole leaseholder/victim
       several times not to be present on the property. Further,
       [Appellant] testified that he knew the leaseholder did not want
       him to return to the property and that he was unwelcome.[4] While
       it is true that [Appellant] had previously been given a key and
       received direct correspondence from the property owner in the
       past, both change in circumstances and the subsequent
       unambiguous communication from the leaseholder establishes
       sufficient evidence for a jury to reasonably find [Appellant] knew
       he was not welcome on the property.

Trial Court Opinion, 4/2/18, at 6–7.

       We have reviewed the certified record, including the notes of testimony.

Appellant admitted that he did not have permission to be in the Victim’s




____________________________________________


4   N.T., 3/31/17, at 185.

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J-A26024-18


apartment. N.T., 3/31/17, at 185, 204. Appellant’s final sufficiency challenge

lacks merit.

      In his second issue, Appellant assails the jury’s verdict as against the

weight of the evidence. Appellant’s Brief at 17. “The weight of the evidence

is a matter exclusively for the finder of fact, who is free to believe all, part, or

none of the evidence and to determine the credibility of the witnesses.”

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015). We

use the following standards in addressing a weight challenge:

             A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319,
      744 A.2d 745, 751–[7]52 (2000); Commonwealth v. Brown,
      538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should
      not be granted because of a mere conflict in the testimony or
      because the judge on the same facts would have arrived at a
      different conclusion. Widmer, 560 A.2d at 319–[3]20, 744 A.2d
      at 752. Rather, “the role of the trial judge is to determine that
      ‘notwithstanding all the facts, certain facts are so clearly of greater
      weight that to ignore them or to give them equal weight with all
      the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation
      omitted). It has often been stated that “a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.

            An appellate court’s standard of review when presented with
      a weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

                    Appellate review of a weight claim is a
               review of the exercise of discretion, not of the
               underlying question of whether the verdict is
               against the weight of the evidence. Brown, 648
               A.2d at 1189. Because the trial judge has had the
               opportunity to hear and see the evidence presented,

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J-A26024-18


            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the evidence.
            Commonwealth v. Farquharson, 467 Pa. 50, 354
            A.2d 545 (Pa. 1976).

      Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis
      added).

Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013). “Thus, the

trial court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879–880 (Pa. 2008).

      In a single, boilerplate sentence, Appellant contends that “the evidence

is this case weighs heavily against the verdict reached by the jury, and as

such shocks one’s sense of justice.” Appellant’s Brief at 18. This argument

fails to defeat the trial court’s exercise of discretion in ruling that the verdict

was not against the weight of the evidence. As the trial court observed:

      during deliberations, the jury had the opportunity to weigh the
      credibility of all witnesses[, including Appellant,] and evidence
      presented at trial and determined which evidence it found most
      compelling. The jury, serving as the fact-finder, had ample
      evidence to find [Appellant] guilty of [the offenses charged], and
      furthermore, found this evidence credible. In this case, a guilty
      verdict certainly does not shock one’s sense of justice.

Trial Court Opinion, 4/2/18, at 4.     The jury chose to believe the evidence

presented by the Commonwealth, as was its right.            Commonwealth v.

Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015). This Court will not assume




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the role of fact-finder and reweigh the evidence. Rogal, 120 A.3d at 1001

(citation omitted). Appellant’s weight challenge lacks merit.

      Lastly, Appellant challenges the denial of his motion to suppress his

confession. Appellant’s Brief at 18. The standard of review an appellate court

applies when considering an order denying a suppression motion is well

established:

            In evaluating a suppression ruling, we consider the evidence
      of the Commonwealth, as the prevailing party below, and any
      evidence of the defendant that is uncontradicted when examined
      in the context of the record. Commonwealth v. Sanders, 42
      A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the
      factual findings of the suppression court where the record
      supports those findings and may only reverse when the legal
      conclusions drawn from those facts are in error. Id.

Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015).

Additionally, we may consider only the evidence presented at the suppression

hearing. In re L.J., 79 A.3d 1073, 1085–1087 (Pa. 2013).

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

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

Templin, 795 A.2d 959, 961 (Pa. 2002) (citation omitted). Moreover, “the

voluntariness of a confession is      determined by the         totality of the

circumstances.” Id. at 963–964. Our Supreme Court has further explained

as follows:

            In determining voluntariness, the question is not whether
      the defendant would have confessed without interrogation, but
      whether the interrogation was so manipulative or coercive that it
      deprived the defendant of his ability to make a free and
      unconstrained decision to confess. “By the same token, the law

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       does not require the coddling of those accused of crime. One such
       need not be protected against his own innate desire to unburden
       himself.” Commonwealth v. Graham, 408 Pa. 155, 162, 182
       A.2d 727, 730–31 (1962). Factors to be considered in assessing
       the totality of the circumstances include the duration and means
       of the interrogation; the physical and psychological state of the
       accused; the conditions attendant to the detention; the attitude
       of the interrogator; and any and all other factors that could drain
       a person’s ability to withstand suggestion and coercion.

Id. at 966 (some internal quotation marks and citations omitted).

       Here, Appellant does not challenge the duration, conditions, or means

of the custodial interrogation conducted by Troopers Domenick and

Birckbichler.5    Rather, Appellant argues that his waiver of rights was not

voluntary because the troopers did not inform him “that he had legal

representation at the time of the custodial interrogation or that his [counsel]

had advised members of the Pennsylvania State Police not to question

Appellant with regards to this matter.” Appellant’s Brief at 25.6 We note that

Appellant rests his argument only on his federal constitutional rights to remain

silent and to counsel under the Fifth and Sixth Amendments, respectively. Id.



____________________________________________


5  Considering the totality of the circumstances presented at the suppression
hearing, we have no doubt that Appellant validly waived his constitutional
rights. The record is devoid of any suggestion that police resorted to physical
or psychological pressure to elicit Appellant’s statement. N.T., Suppression,
10/21/16, at 21–25, 56–58, Commonwealth Exhibits 1, 2.

6  Troopers Domenick and Birckbichler knew while en route to Kentucky that
defense counsel had contacted Trooper Josh Thomas of the Pennsylvania State
Police, advised Trooper Thomas that he had been retained as Appellant’s
attorney, and instructed Trooper Thomas that no one was to speak with
Appellant. N.T., 10/21/16, at 29–32.

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Upon review, we conclude that Appellant’s argument is “untenable as a matter

of both logic and precedent.” Moran v. Burbine, 475 U.S. 412 (1986).

     The United States Supreme Court granted certiorari in Moran to decide

“whether a prearraignment confession preceded by an otherwise valid waiver

must be suppressed either because the police misinformed an inquiring

attorney about their plans concerning the suspect or because they failed to

inform the suspect of the attorney’s efforts to reach him.” Moran, 475 U.S.

at 420. Upon review of Burbine’s application for writ of habeas corpus, the

district court of Rhode Island denied the defendant’s motion to suppress his

confession. Burbine v. Moran, 589 F. Supp. 1245 (D.C. R.I. 1984). The

First Circuit Court of Appeals reversed. Burbine v. Moran, 753 F.2d 178,

185 (1st Cir. 1985). Reversing the Court of Appeals, the Moran Court opined:

           Events occurring outside of the presence of the suspect and
     entirely unknown to him surely can have no bearing on the
     capacity to comprehend and knowingly relinquish a constitutional
     right. Under the analysis of the Court of Appeals, the same
     defendant, armed with the same information and confronted with
     precisely the same police conduct, would have knowingly waived
     his Miranda rights had a lawyer not telephoned the police station
     to inquire about his status. Nothing in any of our waiver decisions
     or in our understanding of the essential components of a valid
     waiver requires so incongruous a result. No doubt the additional
     information would have been useful to respondent; perhaps even
     it might have affected his decision to confess. But we have never
     read the Constitution to require that the police supply a suspect
     with a flow of information to help him calibrate his self-interest in
     deciding whether to speak or stand by his rights. See, e.g.,
     Oregon v. Elstad, 470 U.S. 298, 316–317, 105 S.Ct. 1285,
     1296–1297, 84 L.Ed.2d 222 (1985); United States v.
     Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1819, 52 L.Ed.2d
     238 (1977). Cf. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366,
     88 L.Ed.2d 203 (1985); McMann v. Richardson, 397 U.S. 759,

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       769, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970). Once it is
       determined that a suspect’s decision not to rely on his rights was
       uncoerced, that he at all times knew he could stand mute and
       request a lawyer, and that he was aware of the State’s intention
       to use his statements to secure a conviction, the analysis is
       complete and the waiver is valid as a matter of law. The Court of
       Appeals’ conclusion to the contrary was in error.

              Nor do we believe that the level of the police’s culpability in
       failing to inform respondent of the telephone call has any bearing
       on the validity of the waivers. . . . [W]hether intentional or
       inadvertent, the state of mind of the police is irrelevant to the
       question of the intelligence and voluntariness of respondent’s
       election to abandon his rights. . . . Nor was the failure to inform
       respondent of the telephone call the kind of “trick[ery]” that can
       vitiate the validity of a waiver. Miranda, 384 U.S., at 476, 86
       S.Ct., at 1629. Granting that the “deliberate or reckless”
       withholding of information is objectionable as a matter of ethics,
       such conduct is only relevant to the constitutional validity of a
       waiver if it deprives a defendant of knowledge essential to his
       ability to understand the nature of his rights and the consequences
       of abandoning them. Because respondent’s voluntary decision to
       speak was made with full awareness and comprehension of all the
       information Miranda requires the police to convey, the waivers
       were valid.

Moran, 475 U.S. at 422–424.7




____________________________________________


7  In a case of first impression, the Pennsylvania Supreme Court addressed
whether Moran applied in the context of an accused’s state constitutional right
to counsel in Commonwealth v. Arroyo, 723 A.2d 162 (Pa. 1999). The
Arroyo Court held that the state constitutional right to counsel is co-
terminous with the Sixth Amendment right to counsel and attaches at the first
formal charging proceeding.         Arroyo, 723 A.2d at 170; accord
Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa. 2009) (holding right to
counsel attaches at initiation of adversary judicial proceedings, generally at
arraignment). The Pennsylvania Supreme Court concluded that, because
Arroyo did not have a pre-arraignment right to counsel, “there [was] obviously
no need . . . to address [Arroyo’s] claim that this right to counsel was
violated.” Arroyo, 723 A.2d at 170 n.9.

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       Applying Moran to the case at hand, we conclude that the trial court did

not abuse its discretion in denying Appellant’s motion to suppress. Although

Appellant had a Fifth Amendment right to remain silent during the custodial

interrogation by Troopers Domenick and Birckbichler, the record confirms that

he voluntarily waived that right, and Appellant’s Sixth Amendment right to

counsel had not attached at the time he confessed. Therefore, the troopers’

failure to inform Appellant that his family had hired counsel and that counsel

had instructed Pennsylvania State Trooper Thomas that no one was to speak

with Appellant is immaterial to the voluntariness of Appellant’s waivers.

Accord Moran, 475 U.S. at 422–424;8 Arroyo, 723 A.2d at 170. “Because

[Appellant’s] voluntary decision to speak was made with full awareness and

comprehension of all the information Miranda requires the police to convey,

the waivers were valid.” Moran, 475 U.S. at 424. Appellant’s suppression

challenge lacks merit.

       Judgment of sentence affirmed.




____________________________________________


8  In the wake of Moran, the Pennsylvania Supreme Court twice reaffirmed
that the right to the presence of counsel belongs to a suspect and may not be
invoked by a third party. See Commonwealth v. Edmiston, 634 A.2d 1078,
1086 n.1 (Pa. 1993) (“Here, any right to the presence of legal counsel
belonged solely to appellant and may not be assumed by third parties.”);
Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997) (“Since one’s Sixth
Amendment and Fifth Amendment rights are personal, they cannot be invoked
by another party.”).

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J-A26024-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2018




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