J-S61028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OMAR MILLER                                :
                                               :
                       Appellant               :   No. 350 EDA 2019

          Appeal from the Judgment of Sentence Entered June 23, 2014
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0004797-2013


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 17, 2019

        Appellant, Omar Miller, appeals from the judgment of sentence entered

on June 23, 2014, as made final by the denial of Appellant’s post-sentence

motion on December 27, 2018. We affirm.

        This Court previously summarized the facts and procedural posture

underlying Appellant’s convictions and sentence:

          On May 5, 2013, [Appellant], Andre Collier, Rasheed Teel,
          and Charles Freeman devised a plan to rob [19]-year-old
          Kareem Borowy. Freeman drove the group to Borowy’s
          house in Pottstown, Pennsylvania, and waited in the car while
          [Appellant], Teel, and Collier entered the residence. Once
          inside, Collier, armed with a .45 caliber Glock pistol,
          demanded that Borowy hand over a large quantity of
          marijuana and $3,000.00 in cash. Borowy pleaded with the
          robbers, insisting that there was no money in the home.



____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S61028-19


       Sensing that the trio was growing impatient, Borowy falsely
       told them that he kept his money in a “stash house” at a
       different location. The men then took Borowy outside and
       forced him into the getaway car. Freeman drove away from
       the residence, presumably intending to travel to Borowy’s
       contrived stash house. When the vehicle slowed down on a
       rural roadway in Lower Pottsgrove Township, Borowy
       managed to escape from the vehicle. Collier chased after
       Borowy and shot him twice. When he returned to the vehicle,
       Collier told the others that he saw Borowy fall to the ground,
       and instructed Freeman to drive away.

       Although severely injured, Borowy managed to crawl on his
       hands and knees to the main roadway. A passing motorist
       spotted Borowy [lying] beside the road a short time later and
       called 911.    When the police arrived, Borowy was
       unresponsive. He was pronounced dead at the scene.

       Four weeks later, on June 3, 2013, a team of federal, state,
       and local law enforcement officers arrested [Appellant] on the
       sidewalk outside of his uncle’s home in Philadelphia,
       Pennsylvania. The officers took [Appellant] to the homicide
       unit of the Montgomery County Detectives’ Bureau.
       Detective Todd Richard brought [Appellant] into a conference
       room and informed him of his right to remain silent and his
       right to counsel. On July 4, 2013, at 12:49 a.m., [Appellant]
       signed a written waiver of those rights.

       Over the course of the next [11] hours, [Appellant] made four
       separate on-the-record statements. Each time, Detective
       Richard transcribed both his questions and [Appellant’s]
       answers. [Appellant] then reviewed Detective Richard’s
       transcriptions, agreed that they were accurate, and signed
       them.

       In [Appellant’s] first statement, which began at 1:01 a.m.,
       he stated that he could not recall whether he was in
       Pottstown on the day that Borowy was killed. [Appellant]
       categorically denied participating either in the robbery or in
       the murder.       At 1:47 a.m., Detective Richard gave
       [Appellant] a break to smoke a cigarette and to use the
       restroom. At 2:22 a.m., Detective Richard resumed his
       questioning.    At that time, [Appellant] gave a second


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       statement to Detective Richard, which concluded at 2:48
       a.m.

       [Appellant] gave a third statement to Detective Richard,
       which began at 6:35 a.m. [Appellant] admitted that he
       “didn’t tell [the detectives] everything” in his earlier
       statements. [Appellant] went on to confess that, on the
       afternoon of Borowy’s murder, he overheard Collier,
       Freeman, and Teel planning a robbery. He also stated that
       Collier was carrying a weapon, which [Appellant] described
       as “a big ass black, semi-automatic with a clip sticking out.”
       Still, [Appellant] denied that he had participated in either the
       planning or the execution of the robbery.

       After giving his third statement, [Appellant] asked for
       something to eat. The detectives gave [Appellant] a breakfast
       sandwich and apple juice. [Appellant] then asked to speak
       with Detective Richard’s “boss.”     Detective Richard left
       [Appellant] in the conference room to finish his breakfast,
       and told his supervisor, Lieutenant James McGowan, that
       [Appellant] wanted to speak with him.

       When Lieutenant McGowan entered the conference room, he
       found [Appellant] with his head down on the table.
       Lieutenant McGowan asked [Appellant] what he wanted to
       discuss, and [Appellant] began crying. [Appellant] told
       Lieutenant McGowan that he was at the scene of the murder
       and that he saw Collier shoot Borowy. [Appellant] then
       stated that he wanted to continue talking to Detective
       Richard.

       Detective Richard reentered the conference room and took
       another statement from [Appellant]. In [Appellant’s] fourth
       statement, which began at 11:08 a.m., [Appellant] confessed
       that he was present during the robbery and the murder. He
       told Detective Richard that “[Collier] killed that boy and I told
       him not to.”      [Appellant] was charged with homicide,
       kidnapping, robbery, persons not to possess a firearm,
       receiving stolen property, and false imprisonment. The
       Commonwealth also charged [Appellant] with conspiracy to
       commit each of those offenses.

       On December 31, 2013, [Appellant] filed a motion to
       suppress the inculpatory statements that he made to

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       detectives on June 4, 2013. In his motion, [Appellant]
       asserted two bases for suppression of his statement. First,
       [Appellant] argued that, “[u]nder the totality of the
       circumstances, [Appellant’s] inculpatory statements were not
       made voluntarily.”      [Appellant’s Motion to Suppress,
       12/31/13, at 2]. Second, [Appellant] asserted that, “[d]uring
       the course of questioning, [Appellant] made a request for
       counsel, even naming such counsel, but detectives did not
       then terminate the interrogation.” Id.

       The trial court held a three-day hearing on [Appellant’s]
       motion to suppress, which commenced on January 7, 2014.
       At the beginning of that hearing, the trial court asked
       [Appellant’s] attorney to state on the record the basis for his
       suppression motion. He responded as follows:

          [W]e have an issue about my client’s statement. My
          client was arrested at about midnight, say 12:01 a.m., on
          June 4th. The inculpatory statement came on the fourth
          or fifth attempt of the officers to question him, and it was
          ultimately given at 11:30, almost – in the morning – 12
          hours later.

          My primary issue is the right to counsel, as opposed to
          the totality of the circumstances, although I will touch
          upon them. But my primary issue is the violation of his
          right to counsel during that process.

       [N.T. Suppression Hearing, 1/7/14, at 20-21].

       The Commonwealth presented testimony from Detective
       Richard and Lieutenant McGowan at the hearing. That
       testimony directly addressed the issues that [Appellant] set
       forth in his suppression motion and reiterated on the record
       at the beginning of the hearing, namely, (1) whether the
       totality of the circumstances demonstrated that [Appellant’s]
       statement was involuntary, and (2) whether the detectives
       continued to question [Appellant] after he had invoked his
       right to counsel. On April 10, 2014, the trial court denied
       [Appellant’s] suppression motion.

       The Commonwealth joined the cases against [Appellant],
       Collier, and Freeman for trial.[fn.4] See Pa.R.Crim.P. 582
       (“Defendants    charged  in     separate   indictments  or

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          informations may be tried together if they are alleged to have
          participated in the same act or transaction or in the same
          series of acts or transactions constituting an offense or
          offenses.”). On April 21, 2014, following a five-day jury trial,
          [Appellant] was convicted of second-degree murder, robbery,
          kidnapping, conspiracy to commit kidnapping, and conspiracy
          to commit robbery.[1] On June 23, 2014, the trial court
          sentenced [Appellant] to life imprisonment.

              [fn.4] Teel pleaded guilty to third-degree murder, and
              agreed to testify for the Commonwealth at his
              co-conspirators’ trial.

Commonwealth v. Miller, 134 A.3d 109 (Pa. Super. 2015) (unpublished

memorandum) at 1-6 (some citations and footnotes omitted).

        Appellant filed a timely notice of appeal and raised one claim to this

Court:     that the trial court erred when it denied his suppression motion

“because the initial warnings that Detective Richard read at 12:49 a.m. [had

become] stale.” Id. at 10. We held that Appellant’s lone appellate claim was

waived on appeal, as Appellant never raised the claim before the trial court.

Id.; see also Commonwealth v. Little, 903 A.2d 1269, 1272-1273 (Pa.

Super. 2006) (“appellate review of an order denying suppression is limited to

examination of the precise basis under which suppression initially was sought;

no new theories of relief may be considered on appeal”); Pa.R.A.P. 302(a)

(“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal”).




____________________________________________


1   18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 2901(a)(3), and 903, respectively.


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        On July 8, 2016, Appellant filed a timely, pro se petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           Within this

petition, Appellant claimed that his trial counsel “was ineffective because, the

Superior Court in its opinion affirming the trial court judgment, declared that

trial counsel had failed to properly preserve, and therefore had waived,

[Appellant’s] meritorious argument that the failure of the police to re-advise

[Appellant] of his Miranda[2] rights during subsequent interrogation sessions

was a violation of [Appellant’s] Constitutional rights.” Appellant’s Pro Se PCRA

Petition, 7/8/16, at 2 (some capitalization omitted).

        The PCRA court appointed counsel to represent Appellant. However,

counsel filed a no-merit letter and a request to withdraw, pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court granted

counsel’s petition to withdraw in an order entered October 11, 2016. PCRA

Court Order, 10/11/16, at 1-5.

        After the PCRA court permitted counsel to withdraw, Appellant filed a

pro se motion and requested that the PCRA court provide him with the

transcripts of his case, so that he could prepare an amended PCRA petition.

See Appellant’s Pro Se Motion for Order of Discovery and Transcripts,

10/18/16, at 1-4. The PCRA court denied Appellant’s motion on October 26,




____________________________________________


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

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2016 and dismissed Appellant’s PCRA petition in an order dated November 29,

2016. PCRA Court Order, 10/26/16, at 1; PCRA Court Order, 11/30/16, at 1.

      Appellant appealed the dismissal order and, on appeal, a panel of this

Court vacated the PCRA court’s order. We held that the PCRA court erred

when it refused Appellant’s pro se request to receive the transcripts in his case

– which Appellant filed after the PCRA court allowed his counsel to withdraw

and before the court finally dismissed the petition. We thus vacated the PCRA

court’s order, instructed the PCRA court to provide Appellant with all of the

transcripts in the case, and ordered that the PCRA court provide Appellant

with the right to file an amended PCRA petition. Commonwealth v. Miller,

178 A.3d 205 (Pa. Super. 2017) (unpublished memorandum) at 1-8.

      On remand, Appellant filed an amended, pro se PCRA petition.          See

Appellant’s Amended Petition for Habeas Corpus Relief and Statutory Post

Conviction Collateral Relief, 2/21/18, at 1-36. Appellant raised a number of

claims in this petition, including: “counsel rendered ineffective assistance by

failing to properly raise and litigate before the Superior Court [Appellant’s]

properly preserved meritorious issues of (1) under the totality of the

circumstances    [Appellant’s]   inculpatory   statements    were    not   made

voluntarily, and (2) during the course of questioning [Appellant] made a

request for counsel . . . but [the] detective did not terminate the

interrogation.” Id. at 16 (some capitalization omitted).

      In an opinion and order entered May 31, 2018, the PCRA court granted

Appellant post-conviction collateral relief and reinstated Appellant’s right to

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file both a post-sentence motion and a direct appeal nunc pro tunc. Id. at

1-10. Citing to Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), the

PCRA court concluded that Appellant’s prior counsel on direct appeal was

ineffective for filing an appellate brief that advocated a single, unpreserved

claim and abandoned claims that were otherwise preserved. See PCRA Court

Opinion, 5/31/18, at 6-9; Rosado, 150 A.3d at 426-427 (holding: “filing an

appellate brief which abandons all preserved issues in favor of unpreserved

ones constitutes ineffective assistance of counsel per se”). The PCRA court

ordered: Appellant was entitled to new counsel; new counsel was given time

to review the record, consult with Appellant, and draft a post-sentence

motion; and, counsel’s post-sentence motion was due on or before August 3,

2018. PCRA Court Order, 5/31/18, at 10. Through a succession of orders,

the trial court extended the due-date for Appellant’s post-sentence motion to

October 26, 2018. See Trial Court Order, 7/2/18, at 1-2; Trial Court Order,

9/4/18, at 1; Trial Court Order, 10/15/18, at 1.

      Appellant, through counsel, filed the nunc pro tunc post-sentence

motion on October 26, 2018.     Appellant raised a number of claims in this

post-sentence motion, including that the trial court erred when it refused to

suppress certain inculpatory statements he made during the custodial

interrogation. Specifically, Appellant claimed his statements should have been

suppressed because:     1) “[t]he detectives failed to honor [Appellant’s]

invocation of his right to counsel” during the interrogation and 2) “[t]he

totality of the circumstances indicate[] that [Appellant] did not knowingly,

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intelligently, and voluntarily waive his rights pursuant to Miranda.”

Appellant’s Nunc Pro Tunc Post-Sentence Motion, 10/26/18, at 2-3.

      The trial court denied Appellant’s post-sentence motion on December

27, 2018 and Appellant filed a notice of appeal on January 22, 2019. Appellant

raises two claims on appeal:

        1. Did the trial court err in failing to suppress statements
        made to detectives following Appellant invoking his right to
        counsel in violation of Article 1, Section 9 of the Pennsylvania
        Constitution and the 5th, 6th, and 14th Amendments of the
        United States Constitution?

        2. Did the trial court err in failing to suppress [Appellant’s]
        statements to detectives where waiver of his constitutional
        rights was not knowing, intelligent, or voluntary because
        Appellant continued to bleed from his head and suffer from
        injuries of police tackling him, physically accosting him, and
        deploying a taser to his head at the time of his arrest, prior
        to admonishment and wavier of his constitutional rights in
        violation of his due process rights protected under Article 1,
        Section 9 of the Pennsylvania Constitution and the 14th
        Amendment of the United States Constitution?

Appellant’s Brief at 4 (some capitalization omitted).

      Before turning to the merits of this appeal, we must address two

preliminary claims raised by the Commonwealth, both of which challenge the

timeliness of this appeal.   See Commonwealth’s Brief at 11-14; see also

Commonwealth v. Trinidad, 96 A.3d 1031, 1034 (Pa. Super. 2014) (“[i]t is

well settled that the timeliness of an appeal implicates our jurisdiction and

may be considered sua sponte. Jurisdiction is vested in the Superior Court

upon the filing of a timely notice of appeal”) (citations and quotations

omitted).    First, within the Commonwealth’s brief to this Court, the


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Commonwealth faults the PCRA court for reinstating Appellant’s right to file a

post-sentence motion nunc pro tunc.        See Commonwealth’s Brief at 12.

According to the Commonwealth, this portion of the PCRA court’s order was

erroneous because Appellant did not request the restoration of his

post-sentence motion rights in his pro se amended PCRA petition. See id.

The Commonwealth claims that, since the PCRA court erred when it reinstated

Appellant’s right to file a nunc pro tunc post-sentence motion, Appellant was

not entitled to file a post-sentence motion and his current appeal is untimely.

Id. at 12-13.

      The Commonwealth’s contention is not well taken, given that the PCRA

court expressly reinstated Appellant’s right to file a post-sentence motion nunc

pro tunc, the Commonwealth did not file a notice of appeal from the PCRA

court’s order, and we are now on direct appeal. Simply stated, at this point

in the case, the Commonwealth has lost the right to complain about the relief

the PCRA court afforded Appellant. See Pa.R.A.P. 903(a) (generally providing

a party with 30 days in which to file a notice of appeal).

      The Commonwealth raises a second claim as to why the current appeal

is untimely. See Commonwealth’s Brief at 11-14. The Commonwealth notes

that, in an order entered on May 31, 2018, the PCRA court reinstated

Appellant’s right to file a post-sentence motion and direct appeal nunc pro

tunc. Id. at 11. The Commonwealth claims that Appellant was required to

file his post-sentence motion within ten days of this order (or, by June 9,

2018) and to file his notice of appeal within 30 days of the order (or, by June

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30, 2018).    Id.   According to the Commonwealth, Appellant’s October 26,

2018 post-sentence motion and January 22, 2019 notice of appeal were both

untimely and we must quash the appeal.

      The    Commonwealth’s    claim   fails.   First,   and   contrary   to   the

Commonwealth’s assertion, Appellant’s post-sentence motion was not due

within ten days of the PCRA court’s May 31, 2018 order. Rather, the PCRA

court’s May 31, 2018 order expressly declared that counsel’s post-sentence

motion was due on or before August 3, 2018. PCRA Court Order, 5/31/18,

at 10. Further, the PCRA court undoubtedly had the authority to tailor its

order to the circumstances of the case and to grant Appellant all appropriate

relief – including granting Appellant’s new counsel an extended time in which

to file the post-sentence motion. See 42 Pa.C.S.A. § 9546(a) (“[i]f the court

rules in favor of the petitioner, it shall order appropriate relief and issue

supplementary orders as to rearraignment, retrial, custody, bail, discharge,

correction of sentence or other matters that are necessary and proper”)

(emphasis added).

      Following the PCRA court’s order, the trial court filed three successive

orders and, in these orders, explicitly extended the filing date for Appellant’s

post-sentence motion to October 26, 2018. See Trial Court Order, 7/2/18, at

1-2; Trial Court Order, 9/4/18, at 1; Trial Court Order, 10/15/18, at 1. These

orders, too, were proper, for this Court has held: a “trial court clearly ha[s]

the authority to grant or deny [a]ppellant an extension of time in which to file

his post-sentence motion.” Commonwealth v. Moore, 978 A.2d 988, 991

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(Pa. Super. 2009); see also Commonwealth v. Dreves, 839 A.2d 1122,

1128-1129 (Pa. Super. 2003) (en banc) (holding that the trial court possesses

discretion to allow a defendant to file a post-sentence motion nunc pro tunc).

       Appellant filed his post-sentence motion on October 26, 2018 – which

was within the time the PCRA court and the trial court afforded him. The trial

court then denied the post-sentence motion on December 27, 2018 and

Appellant filed a notice of appeal on January 22, 2019, which was within 30

days of the date the trial court denied his post-sentence motion. We conclude

that, given the express orders of the PCRA court and the trial court in this

case, Appellant’s appeal was timely and we will consider the merits of the

appeal.3

____________________________________________


3 Further, we note that, even if the trial court had somehow erred in extending
the due-date for Appellant’s post-sentence motion, we would have still not
quashed this appeal, as the trial court’s orders would have constituted a
breakdown in the court system. See Commonwealth v. Anwyll, 482 A.2d
656, 657 (Pa. Super. 1984) (“[g]iven the trial court's misstatement of the
appeal period, appellant's failure to appeal on time would appear to be the
result of a breakdown in the court's operation. In these circumstances we
might remand with instructions to permit appellant to file his appeal nunc pro
tunc, but to save judicial time, we will not remand but will regard the appeal
as though filed nunc pro tunc and will consider it on the merits”) (citations
omitted); Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004)
(“the order restoring Appellant's direct appeal rights did not inform Appellant
that he had 30 days to file the appeal. Accordingly, we will not fault Appellant
for failing to appeal within 30 days of the restoration of his direct appeal rights.
Therefore, we will not quash the instant appeal”); cf. Commonwealth v.
Hurst, 532 A.2d 865, 867 (Pa. Super. 1987) (“a trial judge must advise a
defendant on the record at the time of sentencing of the defendant's right to
file an appeal and the time within which that right must be exercised. In the
case at bar, the trial judge failed to inform Appellant of his appellate rights.



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       Both of Appellant’s claims challenge the trial court’s denial of his motion

to suppress. As we have held: “[o]nce a motion to suppress evidence has

been filed, it is the Commonwealth’s burden to prove, by a preponderance of

the evidence, that the challenged evidence was not obtained in violation of

the defendant’s rights.”         Commonwealth v. Wallace, 42 A.3d 1040,

1047-1048 (Pa. Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With

respect to an appeal from the denial of a motion to suppress, our Supreme

Court has declared:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is whether the factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. When
         reviewing [such a ruling by the] suppression court, we must
         consider only the evidence of the prosecution and so much of
         the evidence of the defense as remains uncontradicted when
         read in the context of the record. . . . Where the record
         supports the findings of the suppression court, we are bound
         by those facts and may reverse only if the legal conclusions
         drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).    Further, “[i]t is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”     Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006).



____________________________________________


By virtue of this fact, we shall not quash this untimely appeal”) (citations
omitted).


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      First, Appellant claims that the trial court erred when it denied his

suppression motion, as the police continued to question him after he invoked

his right to counsel. Appellant’s Brief at 7.

      We have summarized:

        In Edwards v. Arizona, the [United States] Supreme Court
        addressed the consequences of a suspect's invocation of the
        right to counsel. The Edwards court held that “when an
        accused has invoked his right to have counsel present during
        custodial interrogation,” police may not conduct further
        interrogations “until counsel has been made available to him,
        unless the accused himself initiates further communication,
        exchanges, or conversations with the police.” 451 U.S. [477,
        484–485 (1981)]. If police conduct further interrogations
        outside the presence of counsel, “the suspect's statements
        are presumed involuntary and therefore inadmissible as
        substantive evidence at trial, even where the suspect
        executes a waiver and his statements would be considered
        voluntary under traditional standards.” McNeil v.
        Wisconsin, 501 U.S. 171, 177 (1991).

                                      ...

        The inquiry into whether or not a suspect has invoked the
        right to counsel is an objective one. [In Davis v. United
        States, the United States Supreme Court] explained that a
        suspect “must articulate his desire to have counsel present
        sufficiently clearly that a reasonable police officer in the
        circumstances would understand the statement be a request
        for an attorney.” [Davis v. United States, 512 U.S. 452,
        459 (1994)]. However, if the statement is “ambiguous or
        equivocal in that a reasonable officer in light of the
        circumstances would have understood only that the suspect
        might be invoking the right to counsel,” police are not
        required to cease questioning. Id.

Commonwealth v. Champney, 161 A.3d 265, 272-273 (Pa. Super. 2017)

(en banc) (emphasis, parenthetical information, and some citations omitted).



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      On appeal, Appellant argues:

        After providing a statement to Detective Richard, [the
        detective] confronted Appellant, telling Appellant that he
        believed Appellant was lying. At this time, Appellant clearly
        and unequivocally invoked his right to counsel. Appellant
        even identified his attorney by name, who represented
        Appellant at a previous, unrelated trial two years prior and
        with which Detective Richard was involved.         Detective
        Richard told Appellant that his attorney represented a
        co-defendant and did not permit Appellant contact [with] his
        attorney.

        Two other witnesses corroborated the fact that Appellant
        invoked his attorney, by name. Appellant’s grandmother
        recounted a conversation with him on the early morning of
        June 4, 2013, wherein she instructed Appellant to wait for his
        attorney prior to speaking with police. Appellant’s uncle
        recounted a conversation with Appellant’s grandmother
        where she told him that she informed Appellant not to say
        anything to police until speaking with his attorney.

Appellant’s Brief at 8-9 (citations omitted).

      According to Appellant, since the police continued to question him after

he invoked his right to counsel, all incriminating statements he made after

that point must be suppressed. Id.

      Appellant’s claim on appeal necessarily fails, as it impermissibly views

the evidence presented at the suppression hearing in the light most favorable

to Appellant. To be sure, although Appellant testified that, during the custodial

interrogation, he told Detective Richard that he wished to speak to his

attorney, Detective Richard expressly testified that Appellant did not ask to

speak to an attorney at any point during the interrogation. N.T. Suppression

Hearing, 1/7/14, at 135-136 (“Q: Now, prior to you reading [Appellant] his



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rights, did he ever ask for a lawyer?; [Detective Richard]: He did not.”); 138

(“Q: Did you ever hear [Appellant] ask for a lawyer?; [Detective Richard]: Not

once.”); 141 (“Q: And during that last portion, did [Appellant] ever ask for a

lawyer?; [Detective Richard]: No.”); 148 (“Q: And your testimony is he never

asked for an attorney?; [Detective Richard]: He did not.”); 148 (“Q: So this

night when [Appellant] got arrested, he never asked to speak to [Attorney

Doug Breidenbach]?; [Detective Richard]: He did not.”); see also N.T.

Suppression Hearing, 1/10/14, at 17 (Lieutenant McGowan also testified that,

during their interaction, Appellant never asked to speak to a lawyer).

      On this appeal from the denial of Appellant’s suppression motion, our

standard of review requires that we “consider only the evidence of the

prosecution and so much of the evidence of the defense as remains

uncontradicted when read in the context of the record.” Eichinger, 915 A.2d

at 1134. Viewed in this light, Appellant’s claim on appeal plainly fails: the

Commonwealth’s evidence supports the trial court’s conclusion that at no point

during the custodial interrogation did Appellant ever request to speak to a

lawyer.

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

suppression motion because he was involved in a physical confrontation with

the police prior to the custodial interrogation and, consequently, his waiver of

his constitutional rights was not knowing, voluntary, and intelligent.

Appellant’s Brief at 9-11.

      Our Supreme Court has held:

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        because of the inherently coercive nature of police custodial
        interrogation, statements elicited from an accused in that
        environment are inadmissible unless the accused was
        informed of and, inter alia, voluntarily waived his privilege
        against self-incrimination and the right to counsel. Waiver is
        made voluntarily if the decision to make it is the product of a
        free and unconstrained choice. In determining whether a
        waiver is valid, a suppression court looks to the totality of the
        circumstances surrounding the waiver, including but not
        limited to the declarant's physical and psychological state,
        the attitude exhibited by the police during the interrogation,
        and any other factors which may serve to drain one's powers
        of resistance to suggestion and coercion. On appeal, this
        Court will reverse the suppression court's determination in
        this regard only where it finds an error of law or finding of
        fact without record support.

Commonwealth v. Lyons, 79 A.3d 1053, 1066 (Pa. 2013) (citations

omitted).

      Appellant claims that the totality of the circumstances does not support

the trial court’s conclusion that he knowingly, voluntarily, and intelligently

waived his constitutional rights. Appellant argues:

        Appellant was involved in a physical confrontation with
        police[, while he was resisting arrest,] less than two hours
        prior to being admonished of his constitutional rights. He was
        bleeding from his head and police failed to obtain medical
        treatment for him to determine whether his psychological and
        physical state permitted him to speak to police.           The
        Commonwealth presented insufficient evidence at the
        suppression hearing to sustain its burden in establishing that
        Appellant knowingly, intelligently, and voluntarily waived his
        constitutional rights in speaking with the police.

Appellant’s Brief at 11.

      Again, Appellant’s claim fails because Appellant does not view the

evidence in the light most favorable to the Commonwealth. Certainly, during


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the suppression hearing, Detective Richard testified that he saw Appellant

immediately after the arrest and he did not “recall anything remarkable about”

Appellant’s physical status.     N.T. Suppression Hearing, 1/10/14, at 9.

Detective Richard clarified: “[Appellant] may have had a cut on his head, a

small cut. But I mean, he was walking towards me, unassisted.” Id. Further,

Detective Richard specifically testified that, during the custodial interrogation,

Appellant did not “appear to have any injuries or any other physical ailments

that would [have] interfere[d] with his ability to understand what was going

on.” N.T. Suppression Hearing, 1/7/14, at 133.

      Detective Richard’s above-summarized testimony is sufficient to support

the trial court’s conclusion that Appellant’s physical confrontation with the

police did not render his Miranda waiver unknowing, unintelligent, or

involuntary. Therefore, Appellant’s second claim on appeal also fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/19




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