J-A13017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEREMEY DANIEL SICKENBERGER,               :
                                               :
                       Appellant               :   No. 871 WDA 2017

           Appeal from the Judgment of Sentence December 15, 2016
                In the Court of Common Pleas of Butler County
               Criminal Division at No.: CP-10-CR-0000805-2014

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 23, 2019

        Appellant, Jeremey Daniel Sickenberger, appeals from the Judgment of

Sentence entered by the Butler County Court of Common Pleas after his

conviction by a jury of Third-Degree Murder.1 We affirm on the basis of the

trial court’s November 23, 2015 Opinion.

        The court summarized many of the relevant facts in its November 23,

2015 Opinion, so we will not repeat them in detail. Briefly, on April 17, 2014,

Appellant shot the victim, Thomas Stockman, in the chest using a .22 caliber

pump-action rifle, killing him.

        During the subsequent police investigation of the shooting, troopers

interviewed Appellant without an attorney present.          After troopers read


____________________________________________


1   18 Pa.C.S. § 2502(c).
J-A13017-18


Miranda2 warnings, Appellant provided incriminating statements both before

and after his arrest during separate recorded interviews.

        During a pre-arrest interview, the troopers issued Miranda warnings

and informed him that he was not under arrest. Appellant asked: “So if I sign

this, I can’t get an attorney?” Trial Court Opinion, filed 11/23/15, at 4. The

troopers told Appellant “No, it’s not[,]” and explained that the form simply

clarified that he had read it to Appellant and that it informed Appellant of his

rights. Id. Appellant signed the Miranda waiver and then spoke with the

troopers for forty minutes.

        After the troopers arrested Appellant for the shooting, Appellant agreed

to another recorded interview. The troopers again issued Miranda warnings

and Appellant indicated he understood the rights he was waiving. During the

warnings, Appellant asked for the following clarification: “So I can still stop to

[inaudible] that I can get an attorney?”         Id. at 5. The trooper responded

“Absolutely. Whatever you want to do. That’s, that’s what this, that’s what

this tells you.” Id. After this final interview, the troopers informed Appellant

about his hearing and appearance before a magistrate the next morning.

Appellant asked, “How can I get an attorney arranged for it?” Id. at 6. The

troopers informed Appellant about the paperwork and process and his

opportunity to make a telephone call.



____________________________________________


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

                                           -2-
J-A13017-18


       Appellant filed a counseled Motion to Suppress his statements to police.

At the October 29, 2015 suppression hearing, Trooper Michael Taylor testified

about his recorded interviews with Appellant.             The Commonwealth also

presented the video recordings of Appellant’s interviews, and Appellant’s

written and signed waiver forms.               After the hearing, the court denied

Appellant’s Motion in a thorough Opinion filed on November 23, 2015.

       Appellant requested a jury trial, and on September 21, 2016, the jury

convicted Appellant of Third-Degree Murder.

       On December 15, 2016, the trial court sentenced Appellant to an

aggregate term of 18 to 40 years’ incarceration.3 Appellant filed a timely Post-

Sentence Motion seeking, inter alia, the reconsideration of his sentence. The

trial court denied Appellant’s Post-Sentence Motion in an Order and

accompanying Opinion filed on May 16, 2017.

       On June 15, 2017, Appellant filed a Notice of Appeal. Both Appellant

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

       Appellant presents three issues for our review:

       1. Did the trial court err[] by failing to suppress statements made
       by [Appellant] during the interrogations that took place at the
       police barracks when [Appellant] had invoked his right to counsel
       but police continued to question him rather than halt the
       interview?




____________________________________________


3 Notably, the trial court’s sentence fell within the standard range of the
applicable sentencing guidelines.

                                           -3-
J-A13017-18


       2. In the alternative, assuming arguendo this Court finds
       [Appellant] did not invoke his right to counsel, was [Appellant’s]
       waiver of counsel a knowing and intelligent waiver?

       3. Did the sentencing court fail to adequately consider the
       mitigating factors, fail to adequately consider [Appellant’s]
       rehabilitative needs, and did the sentencing court base the length
       of sentence exclusively on the seriousness of the crime and thus
       impose a “manifestly excessive” sentence?

Appellant’s Brief at 5.

       Motion to Suppress

       In his first two issues, Appellant argues that the court erred in denying

his Motion to Suppress. Appellant’s Brief at 16-27. First, Appellant avers that

two of his statements indicated that he had invoked his right to counsel: (1)

when the troopers were issuing Miranda warnings and explaining his rights

during a pre-arrest interview, Appellant asked: “So if I sign this, I can’t get

an attorney?” and (2) during subsequent Miranda warnings for a different

post-arrest interview, Appellant asked, “So I can still stop to [inaudible] that

I can get an attorney?”4         Appellant’s Brief at 16-24.   Second, Appellant

alternatively claims that he “did not knowingly and intelligently waive his

Miranda rights.” Appellant’s Brief at 25.




____________________________________________


4 Appellant also claims that the troopers did so knowing that Appellant had
been diagnosed with autism spectrum disorder. Appellant’s Brief at 21 n.1.
In his Brief, Appellant concedes that the suppression court did not have any
evidence about Appellant’s “learning disability” because trial counsel did not
present any such evidence.

                                           -4-
J-A13017-18


      In reviewing the denial of a motion to suppress, we are limited to

considering 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. McCoy, 154 A.3d 813, 815-16 (Pa.

Super. 2017). Where the testimony and other evidence supports the court’s

findings of fact, we are bound by them and “may reverse only if the court

erred in reaching its legal conclusions based upon the facts.” Id. at 816. It

is within the exclusive province of the suppression court to “pass on the

credibility of witnesses and determine the weight to be given to their

testimony.” Id. This Court will not disturb a suppression court’s credibility

determination absent a clear and manifest error.         Commonwealth v.

Camacho, 625 A.2d 1242, 1245 (Pa. Super. 1993).

      “The scope of review from a suppression ruling is limited to the

evidentiary record created at the suppression hearing.” Commonwealth v.

Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016) (citing In re L.J., 79 A.3d

1073, 1087 (Pa. 2013)).

      Importantly, “[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, 1047-48 (Pa. 2012)

(citations omitted); see also Pa.R.Crim.P. 581(H).




                                    -5-
J-A13017-18


      “The law is well-settled that a defendant who requests counsel at any

time during a custodial interview is not subject to further interrogation by the

authorities until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or conversations with the

police.”   Commonwealth v. Edwards, 903 A.2d 1139, 1150 (Pa. 2006)

(citation and quotation marks omitted).

      A suspect is entitled to Miranda warnings prior to a custodial

interrogation. Commonwealth v. Boyer, 962 A.2d 1213, 1216 (Pa. Super.

2008) (noting that defendant’s statement “I don't want to talk to you” was an

invocation of his Miranda rights). If a suspect “indicates, in any manner, at

any time prior to or during questioning, that he wishes to remain silent, the

interrogation must cease.” Commonwealth v. Henry, 599 A.2d 1321, 1323

(Pa. Super. 1991) (internal citations omitted). However, the United States

Supreme Court has held that the invocation of the right to remain silent or

request an attorney must be affirmative, clear, and unambiguous.           See

Berghuis v. Thompkins, 560 U.S. 370 (2010); see also Commonwealth

v. Briggs, 12 A.3d 291, 318 n.27 (Pa. 2011) (noting that the Supreme Court

has held that an individual in police custody subject to interrogation must

affirmatively invoke his or her Miranda rights).

      It is the Commonwealth’s burden to establish that a defendant

“knowingly and voluntarily waived his Miranda rights.” Commonwealth v.

Johnson, 42 A.3d 1017, 1029 (Pa. 2012). A defendant must explicitly waive


                                     -6-
J-A13017-18


his Miranda rights by making an “outward manifestation” of that waiver.

Commonwealth v. Cohen, 53 A.3d 882, 886 (Pa. Super. 2012).                    A

suppression court may properly find that Miranda rights have been waived

where the totality of the circumstances shows “an uncoerced choice and the

requisite level of comprehension[.]” In re T.B., 11 A.3d 500, 505-06 (Pa.

Super. 2010) (citation and quotation marks omitted).

      The Honorable William R. Shaffer, sitting as the trial court, has authored

a comprehensive, thorough, and well-reasoned Opinion, citing the record and

relevant case law in addressing Appellant’s suppression claim. See Trial Court

Opinion, filed 11/23/15, at 1-11 (concluding that there is no merit to

Appellant’s suppression claims because, inter alia, Appellant “did not ask for

an attorney before or during [any] interview, nor did he assert his right to

remain silent[;]” and Appellant understood and voluntarily waived his rights

as demonstrated by the video recordings and the signed waiver forms, which

show that Appellant provided his statements to police voluntarily “following a

valid knowing and intelligent waiver of his Miranda rights.”). We, thus, affirm

on the basis of the trial court’s November 23, 2015 Opinion.

      Discretionary Aspects of Sentencing

      In his third issue on appeal, Appellant acknowledges that his sentence

fell within the standard range of the sentencing guidelines, but avers that the

trial court failed to consider various mitigating factors adequately, such as

Appellant’s rehabilitative needs, which resulted in the imposition of an


                                     -7-
J-A13017-18


excessive sentence. Appellant’s Brief at 29, 32. Such a claim challenges the

discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentence are not appealable

as of right.   Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015).   Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)

properly preserving the issue at sentencing or in a motion to reconsider and

modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a

separate section of the brief setting forth a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence; and (4) presenting a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code. See id.

      An appellant raises a “substantial question” when he “sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation

omitted).

      It is clear from our precedent that Appellant has failed to raise a

substantial question with respect to his sentencing arguments.        See, e.g.,

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013) (claim

that the trial court failed to consider defendant’s rehabilitative needs in

imposing standard-range sentences did not raise a substantial question);


                                      -8-
J-A13017-18


Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (claim that

sentence failed to take into consideration the defendant’s rehabilitative needs

and was manifestly excessive did not raise a substantial question where

sentence was within statutory limits and within sentencing guidelines). See

also Commonwealth v. Miklos, 159 A.3d 962, 970 (Pa. Super. 2017),

appeal denied, 170 A.3d 1042 (Pa. 2017) (holding that an argument that the

sentencing court failed to adequately consider mitigating factors in favor of a

lesser sentence does not present a substantial question appropriate for our

review); Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super.

1989) (en banc) (concluding that an allegation that the sentencing court did

not adequately consider various factors is, in effect, a request that this court

substitute its judgment for that of the lower court in fashioning a defendant’s

sentence).5

       In light of the foregoing, we affirm Appellant’s Judgment of Sentence.




____________________________________________


5 Moreover, even had Appellant presented a substantial question, he would
not be entitled to relief. The trial court acknowledged and considered, inter
alia, the facts of this case, the pre-sentence investigation report, the
sentencing guidelines, the witnesses at sentencing, the letters about
Appellant’s good character, and the expert testimony and report about
Appellant’s autism spectrum disorder diagnosis. See Trial Court Opinion, filed
5/16/17, at 8; N.T. Sentencing, 12/15/16, at 69-71. After thoroughly
reviewing the certified record, including the sentencing transcript, the briefs
of the parties, the applicable law, and the comprehensive and well-reasoned
Opinion of the trial court, we conclude that there is no merit to Appellant’s
sentencing claims.

                                           -9-
J-A13017-18


      The parties are instructed to attach a copy of the trial court’s November

23, 2015 Opinion to all future filings.

      Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2019




                                     - 10 -
                                                                                             Circulated 12/28/2018 09:39 AM




     IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA

COMMONWEAL TH OF PENNSYLVANIA                                            CRIMINAL DIVISION

           vs.                                                           C.A. No. 0805 of 2014
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For the Commonwealth: Richard A. Goldinger, Esq., Assistant District Attorney7i2,                                 r.,
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For the Defendant:    Joseph L. Smith, Esq., Assistant Public Defender       2i::-:                                --·-·..
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Judge William R. Shaffer                                                 November 23, 2015 rn                          -__J

                                                                                                    -;:-,,



                                             MEMORANDUM OPINION

           The Defendant seeks suppression of statements I he made in the hours following the

shooting death of the victim, Thomas Stockman. A hearing on the Defendant's Omnibus Motion

was held on October 29, 2015. In his motion, the Defendant presents two theories in support of

suppression: 1) he was subject to custodial interrogation without the benefit of Miranda2

warnings; and 2) he was arrested absent probable cause, and that improper arrest tainted any

subsequent statements made by him. At the time of the hearing, the Commonwealth presented

the testimony of a single witness: Trooper Michael Taylor, an eleven-year veteran of the

Pennsylvania State Police who, at the time of the challenged interviews, was a Criminal

Investigator. Following the time of the hearing, a compact disc containing an interview of the

Defendant was submitted to the Court; counsel for both sides stipulated to its authenticity.



I
  At the time of the hearing on the Defendant's Omnibus Motion, counsel for both sides indicated that issues related
to discovery had been resolved or were in the process of being resolved. The Court, therefore, need not decide any
issues related to discovery.
2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).



                                                                                                                         1




                                                          70
Counsel for the Defendant, at the time of the hearing, requested that the Court review the

recording and decide if the Defendant requested an attorney. Based on the testimony of Trooper

Taylor, which the Court finds credible, and our review of the submitted recording, we make the

following findings of fact.


       On April 17, 2014, Trooper Taylor responded to 146 Robbie Way in Portersville, Butler

County, in response to a 911 call during which it was reported that there had been an accidental

shooting. The Trooper, dressed in civilian clothing, arrived sometime after dark and spoke to

others on the scene. Several individuals who had been present during the shooting were located

outside of the residence. Trooper Taylor conducted brief interviews with each person in order to

determine what had occurred. The interviews each lasted between seven and ten minutes and

took place inside the Trooper's police vehicle, with the interviewees located in the front

passenger seat. The interviews were recorded with the permission of each interviewee. Trooper

Taylor first interviewed Ashley Homison. He next interviewed the Defendant. The Defendant

was not under arrest during the interview. Following the Trooper's interview with the Defendant,

he briefly interviewed two other individuals who were there. At the time of the interviews,

Trooper Taylor did not know the status of the victim and had no reason to believe that a crime

had been committed.


       After the interviews concluded, Trooper Taylor went inside the residence to examine the

scene where the shooting had taken place. The examination took approximately one hour. The

Defendant's version of what had taken place did not match the physical evidence observed at the

residence. Trooper Taylor obtained permission from the on-site Lieutenant to call for assistance.

Trooper Chris Birkbichler was contacted and in due course arrived on the scene. After

                                                                                                    2




                                                  ·7(;
examining the residence, Trooper Birkbichler concurred with Trooper Taylor's assessment that

the Defendant's version of what had happened did not match the physical evidence. During this

time Trooper Taylor was informed that the victim had passed away. After collecting evidence

from inside the Robbie Way residence, Trooper Taylor went outside and asked all the people

there if they were willing to come to the State Police Barracks and ride in separate vehicles so as

not to contaminate each other's statements. Each person agreed. It was approximately 9:30 or

10:00 P.M. at that time. The Defendant was asked to ride with Trooper Taylor. He agreed to do

so. The Defendant rode to the Barracks in the front seat of Trooper Taylor's vehicle. He was

not handcuffed during the ride.


        Once at the Barracks, the Defendant was taken to an interview room. Trooper

Birckbichler was there and asked the Defendant ifhe would give permission for the interview to

be audio and video recorded. The Defendant agreed. The Defendant was told at that time that he

was not under arrest and that he was free to leave at any time. The Defendant gave a version of

the events that conflicted in some ways with his earlier statement. Trooper Taylor testified that it

was his normal practice to offer interviewees a beverage, but he could not recall whether he

actually did so in this instance. During the interview, the troopers told the Defendant something

to the effect that mistakes or accidents can happen, but that they needed the matter to be cleared

up. The Defendant indicated that he was holding the weapon in a low position with his hand off

of the trigger when it fired. Trooper Birckbichler then reminded the Defendant that he was free

to leave and the conversation continued. The interview lasted approximately one hour. After the

interview concluded, the Defendant was taken to the lobby of the State Police Barracks. He was

not detained at that time.


                                                                                                     3
       The troopers interviewed the other people who had traveled to the Barracks. Details of

the stories they gave were different from what they had told Trooper Taylor outside of the

Robbie Way residence. Trooper Taylor then approached the Defendant in the lobby and again

asked him ifhe was willing to speak to the troopers. The Defendant agreed. He was at about that

time advised of his Miranda warnings. The Defendant acknowledged that he understood those

warnings. Trooper Taylor testified that after the warnings were read to the Defendant, he asked:

"So if I sign this, I can't get an attorney?" The Defendant was then informed that the form was

merely informing the Defendant of his rights. The Defendant signed the Miranda waiver. At the

time of the hearing, the Commonwealth introduced into evidence as Exhibit 1 a Pennsylvania

State Police Rights Warning and Waiver that was signed by the Defendant and witnessed by

Troopers Taylor and Birckbichler. The Defendant was informed that he was not in custody. The

interview lasted approximately forty minutes. The Defendant admitted that he had retrieved the

gun used in the shooting from a bedroom of the Robbie Way residence. The Defendant was

asked if he was willing to submit his clothing for examination. He agreed and submitted his

clothing to the troopers. He was given replacement garments to wear. After the interview, the

Defendant was driven home by Trooper Birckbichler because everyone else who had been at the

Robbie Way residence had left the State Police Barracks.


       Later that day, after Alshey Homison had given statements that further implicated the

Defendant, the troopers traveled to the Defendant's residence and, once there, placed the

Defendant in handcuffs. The Defendant was then transported to the State Police Barracks. The

Defendant was taken to an interview room. Once there he granted permission for the interview

to be recorded. The Defendant was advised of his Miranda rights by Trooper Birckbichler. The

recording submitted to the Court as Defendant's Exhibit A reveals that Trooper Birckbichler
                                                                                                   4
informed the Defendant that the interview was being recorded, and the Defendant indicated that

he had no objection. The recording also revealed that Trooper Birckbichler told the Defendant

that he was in custody and he did not have the right to leave. Trooper Birckbichler recited the

warnings contained in the Pennsylvania State Police Rights Warning and Waiver to the

Defendant verbatim. The recoding reveals that when Trooper Birckbichler asked the Defendant

if he understood the rights that had been given, the Defendant indicated that he did understand

his rights. The following exchange then took place:


               Trooper Birckbichler: Alright. The waiver you're going to be signing says I fully
                                     understand the statement warning me of my rights and I am
                                     willing to answer questions. I do not want an attorney, and
                                     I understand that I may stop answering questions any time
                                     during the questioning. No promises have been made to
                                     me, nor have I been threatened in any manner. Understand
                                     all that?

               The Defendant:         So I can still stop to [inaudible] that I can get an attorney?

               Trooper Birckbichler: Absolutely. Whatever you want to do. That's, that's what
                                     this, that's what this tells you.

               Trooper Taylor:        Did you have, uh, anything to drink today? No alcohol?

               The Defendant:        Not me, no.

               Trooper Taylor:       No alcohol?

               The Defendant:        Nope.

               Trooper Taylor:       Nothing at all?

               Trooper Birckbichler: You want a water or anything?

               The Defendant:        Nope.

               Trooper Birckbichler: Okay.



                                                                                                       5




                                                   7C
As Exhibit 2, the Commonwealth introduced into evidence a Pennsylvania State Police Rights

Warning and Waiver form with the time of 20:41 that is signed by the Defendant and witnessed

by Trooper Taylor and Trooper Birckbichler. Following the above exchange, the interview

proceeds. At all times Trooper Taylor and Trooper Birckbichler acted in a courteous, respectful,

and professional manner and no threats were made against the Defendant. At the conclusion of

the interview, the troopers explained to the Defendant that he would be taken before a magistrate

the following morning. The Defendant asks: "How can I get an attorney arranged for it?" The

troopers explained that paperwork to apply for a Public Defender would be made available and

that the Defendant would have the opportunity to make a telephone call. At no time during the

interview did the Defendant ask for an attorney or assert his right to remain silent.

       The Defendant first argues that he was subjected to custodial interrogation without the

benefit of Miranda warnings. Before an individual is subjected to a custodial interrogation, he or

she must make a knowing and intelligent waiver of his privilege against self-incrimination and

right to counsel after adequate warning as to those rights. Commonwealth v. Williams, 650 A.2d

420, 427 (Pa. 1994 ). Custodial interrogation is defined as questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way. Commonwealth v. Cooley, 118 A.3d 3 70, 376 (Pa.

2015)(citing Miranda, 384 U.S. at 444). The test for custodial interrogation does not depend

upon the subjective intent of the law enforcement officer-interrogator, but upon whether the

suspect is physically deprived of his freedom of action in any significant way or is placed in a

situation in which he reasonably believes that his freedom of action or movement is restricted by

such interrogation. Commonwealth v. O'Shea, 318 A.2d 713, 715 (Pa. 1974), cert. denied, 419

U.S. 1092, 95 S. Ct. 686 (1974)(quotation and citation omitted). Custodial interrogation does not

                                                                                                   6
require that the police make a formal arrest, nor that the police intend to make an arrest.

Commonwealth v. Medley, 612 A.2d 430, 433 (Pa. 1992)(quoting Commonwealth v. Br01n1, 375

A.2d 1260, 1264 (Pa. 1977)). Although the circumstances of each case must certainly influence

a determination of whether a person is "in custody" for purposes of receiving of Miranda

protection, the ultimate inquiry is whether there is a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121,

1125, 103 S. Ct. 3517, 77 L. Ed. 2d 12275 (1983)(quotation and citation omitted); Cooley, 118

A.3d at 376 (citing Stansbury v. California, 511 U.S. 318, 322 (1994)).

       Not every restriction of movement imposed on an individual by the police constitutes an

arrest. See, e.g., Berkemer v. McCarthy, 468 U.S. 420, 104 S. Ct. 313 8, 82 L. Ed. 2d 317

(1984)(declining the opportunity to extend Miranda protections to typical roadside traffic stops);

Commonwealth v. Carter, 643 A.2d 61, 67 n. 2 (l 994)(noting the Pennsylvania Supreme Court

does not hold that an individual has been arrested every time the police place him or her in

handcuffs). Courts evaluate whether one is in custody by looking to the totality of the

circumstances. Among the factors utilized in determining whether a detention became so

coercive as to constitute the functional equivalent of a formal arrest are: the basis for the

detention; the duration; the location; whether the individual was transferred against his will, how

far, and why; whether restraints were used; the show, threat or use of force; whether the person

was the focus of the investigation; and the methods of investigation used to confirm or dispel

suspicions. Commonwealth v. Peters, 642 A.2d 1126, 1130 (Pa. Super. Ct. 1994)(citations

omitted).

       The first interview of the Defendant took place outside of the Robbie Way residence

inside of Trooper Taylor's police vehicle. Each of the individuals who were there was

                                                                                                   7
                                                                       .......,




interviewed in turn. Each person, including the Defendant, consented to the interview being

recorded. The Defendant was not handcuffed or restrained in any way prior to or during the

interview. There was no threat or show of force made and the Defendant was not transported in

any manner. The interview of the Defendant lasted mere minutes. Trooper Taylor, at the time of

the interview, did not suspect that he was investigating anything other than an accidental

shooting. Based on these facts, the Court finds that the Defendant could not have reasonably

believed that his freedom of movement was restrained in any way, let alone to the degree

associated with a formal arrest. Miranda warnings were not required.

       The second interview of the Defendant took place in an interview room at the State

Police Barracks. Following investigation of the Robbie Way residence, the troopers asked the

individuals who were potential witnesses to the shooting if they would agree to go to the State

Police Barracks and if they would travel there separately. Each person, including the Defendant,

agreed to do so. The Defendant rode to the State Police Barracks in the front seat of Trooper

Taylor's police vehicle. Trooper Taylor was dressed in civilian clothing. The Defendant was

not handcuffed during the ride. Once at the State Police Barracks, the Defendant went to an

interview room. Trooper Birckbichler then asked the Defendant if he would permit the interview

to be recorded. The Defendant agreed. The Defendant was then advised that he was not under

arrest and that he was free to leave at any time. The Defendant was interviewed for

approximately one hour. He was reminded during the interview that he was free to leave. The

evidence does not demonstrate that any show or threat of force was made at any time during this

interview or during any of the interviews.   Based on these facts, the Court finds that the

Defendant was not placed in a situation where he reasonably could have believed that his



                                                                                                  8




                                                    =ro
                                                     I
freedom of movement was restrained to the degree associated with formal arrest. Miranda

warnings were not required.

       The next interview, the second interview of the Defendant at the State Police Barracks,

took place after the Defendant was approached by Trooper Taylor in the lobby. Trooper Taylor

asked the Defendant ifhe was willing to again speak to the troopers. The Defendant agreed to

do so. The Defendant was at that point advised of his Miranda rights. The Defendant

acknowledged that he understood those rights. Regarding the Miranda waiver, however, the

Defendant asked: "So ifl sign this, I can't get an attorney?" The Defendant was then informed

by the troopers that the Pennsylvania State Police Rights Warning and Waiver form merely

informed him of his rights. The Defendant then signed the waiver. He was then interviewed for

approximately forty minutes after he was reminded that he was free to leave. With respect to the

question of whether or not the Defendant was in custody such that Miranda rights were required,

the Court finds that the second interview to take place at the State Police Barracks was no

different than the first, save that it took place later, during the early morning of April 18, 2014.

The Defendant voluntarily agreed to speak to the troopers. He was reminded that he was free to

leave. The interview lasted approximately forty minutes. The Defendant was not placed in a

situation where he reasonably could have believed that his freedom of movement was restricted

to the degree associated with a formal arrest. Miranda warnings were not required.

       Miranda warnings, however, were given to the Defendant. The Defendant indicated that

he understood the warnings that were given to him. He asked whether by signing the waiver, he

relinquished his right to counsel. The troopers informed him that that was not the case and that

the Rights Warning and Waiver form notified the Defendant of his rights. The Defendant then

signed the waiver. Once more, the Defendant was reminded that he was free to leave. He then

                                                                                                       9
answered the troopers' questions for approximately forty minutes. Thereafter, since the other

interviewees had departed, the Defendant was driven home by Trooper Birckbichler. Even if

Miranda warnings had been required, the Court finds that the Defendant knowingly,

intelligently, and voluntarily waived the rights that are the subjects of the Miranda warnings.

         The Defendant was in custody during the third interview that took place at the State

Police Barracks. Miranda warnings were required. Prior to the interview, Miranda warnings

were given to the Defendant. Defendant's Exhibit A demonstrates that Trooper Birckbichler

read to the Defendant the Pennsylvania State Police Rights Warning and Waiver form

substantially verbatim. The Defendant indicated that he understood the rights that were read to

him. In determining whether a defendant's waiver of his Miranda rights is valid, a trial court

must consider: 1) whether the waiver was voluntary, in the sense that the waiver was not the

result of governmental pressure; and 2) whether the waiver was knowing and intelligent, in the

sense that it was made with full comprehension of both the nature of the right being abandoned

and the consequence of that choice. Factors to be considered in determining whether a waiver is

valid and a confession is voluntary include: the duration and means of interrogation; the

defendant's physical and psychological state; the conditions attendant to the detention; the

attitude exhibited by the police during the interrogation; and any other facts which may serve to

drain one's powers of resistance to suggestion and coercion. Commonwealth v. Patterson, 91

A.3d 55, 76 (Pa. 2014) cert. denied sub nom. Patterson v. Pennsylvania, 135 S. Ct. 1400 (U.S.

2015).

         The Court finds that the Defendant waived his Miranda rights and that the waiver of his

Miranda rights was knowingly, intelligently, and voluntarily made. The Defendant had not been

detained following the earlier interviews with the state police. After he was taken to the State

                                                                                                   10
Police Barracks following his arrest, the Defendant was read Miranda warnings by Trooper

Birckbichler. The Defendant indicated that he understood his rights. Trooper Birckbichler then

read to the Defendant the waiver portion of the Pennsylvania State Police Rights Warning and

Waiver form. The Defendant then apparently asked whether he was able to stop the interview in

order to get an attorney. Trooper Birckbichler responded by informing the Defendant that he was

free to do so. After indicating that he had not been drinking, and after declining the offer of a

beverage, the Defendant signed the Miranda waiver. After the waiver was signed, the interview

of the Defendant proceeds for approximately thirty to forty minutes. At all times during the

interview were the troopers courteous and professional. There is nothing contained on the audio

recording, submitted as Defendant's Exhibit A, that tends to show the Defendant's statements

were anything but voluntarily given. The evidence presented at the suppression hearing likewise

did not tend to show that the conditions of detention or the Defendant's psychological state were

such that the statements given by him were involuntary. Additionally, the Defendant did not ask

for an attorney before or during the interview, nor did he assert his right to remain silent. The

Court thus finds that the Defendant provided voluntary statements following a valid knowing and

intelligent waiver of his Miranda rights.

       We finally address the Defendant's argument that he was arrested absent probable cause.

The argument is without merit. The Defendant was not in custody prior to the arrest that took

place sometime on April 18, 2014. By the time of his arrest, the police were aware that a

shooting had taken place that resulted in the death of the victim. Interviews with several

individuals indicated that the Defendant had been in possession of the weapon that was fired at

the time of the shooting. The Defendant, in his statements to the police at the State Police

Barracks, indicated that he retrieved a weapon from a bedroom of the Robbie Way residence and

                                                                                                    11
was holding it at the time it fired. In order to determine whether probable cause existed, we must

consider the totality of the circumstances. Probable cause exists where the facts and

circumstances within an officer's knowledge are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed. E.g., Commonwealth v.

Martin, 101 A.3d 706, 721 (Pa. 2014) cert. denied sub nom. Martin v. Pennsylvania, 136 S. Ct.

201 (U.S. 2015). The facts and circumstances within the troopers' knowledge led them to

believe that the Defendant had retrieved a weapon from a bedroom of the Robbie Way residence,

that the Defendant was holding the weapon when it discharged, and that the discharge resulted in

the shooting death of the victim. There was probable cause to an-est the Defendant for homicide.

       Accordingly, the Court enters the following:




                                                                                               12
  IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA

COMMONWEAL TH OF PENNSYLVANIA                                 CRIMINAL DIVISION

       vs.                                                    C.A. No. 0805 of 2014

JEREMY DANIEL SICKENBERGER


For the Commonwealth: Richard A. Goldinger, Esq., Assistant District Attorney
For the Defendant:    Joseph L. Smith, Esq., Assistant Public Defender


                                          ORDER OF COURT

       AND NOW, this 23rd day of November, 2015, following a hearing on the Defendant's

Omnibus Motion, it is ordered that the motion is denied.

       It is further ordered that this matter is scheduled as follows:

               Status Conference on December 14, 2015 at 1:00 P.M. in Courtroom 2;

              Call of the List on January 27, 2016 at 9:00 A.M. in Courtroom 2; with

              Jury Selection on January 28 & 29, 2016 at 9:00 A.M. in Courtroom 2; and

              Trial commencing the week of February 8, 2016 in Courtroom 2.
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