J-S28015-20



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 THOMAS BOYER                              :
                                           :
                    Appellant              :   No. 2039 MDA 2019

      Appeal from the Judgment of Sentence Entered October 24, 2018
    In the Court of Common Pleas of Dauphin County Criminal Division at
                      No(s): CP-22-CR-0003791-2016


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

MEMORANDUM BY BOWES, J.:                  FILED: AUGUST 31, 2020

      Thomas Earl Boyer appeals from the October 24, 2018 judgment of

sentence of life imprisonment, which was imposed following his convictions of

first-degree murder and possession of an instrument of crime (“PIC”). We

affirm.

      The following facts, which we glean from the trial transcript, are relevant

to our review.     On September 8, 2015, Luisa Breban noticed that her

roommate Ted McCarty had not been home in several days. N.T. Jury Trial

Vol. I, 10/22/18, at 63. Luisa, who was vision impaired, was assisted in some

everyday tasks by her friend Monica Mas Ramos. On this day, Monica arrived

at Luisa’s apartment to retrieve Luisa’s laundry.     Id.   Monica immediately

noticed a strange and putrid smell in the apartment and music coming from
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Mr. McCarty’s room. After knocking, she opened the door to Mr. McCarty’s

room, where she found his lifeless body covered in blood. Id. at 142.

      Monica started screaming and ran to the porch to call 911. Neighbors

heard her and gathered on the porch.        Monica, shaken by what she had

witnessed, recalled that she handed the phone to a young man, later identified

as Appellant, who placed the emergency call.

      Detective Jarrett Ferrari was placed in charge of the investigation.

Initially, due to the condition of the victim’s body, it was unclear whether this

was a homicide or a death from natural causes. Just days after the murder,

Detective Ferrari met with Appellant, who was sitting with others on his porch

near the victim’s apartment. Appellant told him that he had seen and spoken

briefly to Mr. McCarty at around ten o’clock on the Friday evening before the

body was found. Shortly thereafter, autopsy results revealed that Mr. McCarty

had been stabbed seventy-five times, and a homicide investigation officially

began.

      Police had several interactions with Appellant after the homicide. On

September 18, 2015, Detective Ferrari interviewed him.            At that time,

Appellant mentioned that he knew how much money Mr. McCarty made each

month, and that he saw Mr. McCarty with money on the Friday before he was

found dead.    N.T. Jury Trial Vol. II, 3/23/18, at 382-83.        He was also

interviewed by Sergeant Todd Witmer of the Lower Paxton Police Department

on October 7, 2015.     Appellant told Sergeant Witmer that he “heard [Mr.


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McCarty] was naked as a butterball turkey and stabbed and there was blood

everywhere.” N.T. Jury Trial Vol. III, 3/24/18, at 469. In May 2016, Appellant

contacted Detective Ferrari to discuss the murder. He gave an interview in

which he confessed to stabbing Mr. McCarty “endlessly” after he made sexual

overtures towards him. N.T. Jury Trial Vol. III, 3/24/18, at 478.

         Appellant was charged with criminal homicide and PIC. He filed a motion

to suppress his inculpatory May 2016 statement to police, claiming that it was

involuntary. The motion was denied after a hearing on August 6, 2018. A

jury trial commenced on October 22, 2018, resulting in convictions for first-

degree murder and PIC.           Appellant was sentenced that same day to life

imprisonment.

         On November 2, 2018, Appellant filed a timely post-sentence motion

seeking a new trial or arrest of judgment, which was denied by the trial court

on November 19, 2018. Appellant timely appealed and ultimately complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.1 The trial court issued its Pa.R.A.P. 1925(a)

opinion, and the matter is ripe for our review.

    Appellant presents four issues for our consideration:

    I.     Whether the evidence presented by the [C]ommonwealth at
           trial was not sufficient to prove first[-]degree murder?



____________________________________________


1Appellant was granted permission to file a Rule 1925(b) concise statement
of errors complained of on appeal nunc pro tunc.

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     II.      Whether the trial court erred when it denied Appellant’s post-
              sentence motion for a new trial based on the weight of the
              evidence?

     III.     Whether the trial court abused its discretion when it denied
              Appellant’s motion to suppress and admitted Appellant’s
              statements?

     IV.      Whether the prosecutor engaged in professional misconduct by
              misstating the elements of third[-]degree murder?

Appellant’s brief at 8.2

           We begin our analysis with Appellant’s sufficiency issue. Our standard

of review for a challenge to the sufficiency of the evidence is well-settled: “In

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

evidence admitted at trial, and all the reasonable inferences derived

therefrom, viewed in favor of the Commonwealth as verdict winner, supports

the jury’s finding of all of the elements of the offense beyond a reasonable

doubt. Commonwealth v. Le, 208 A.3d 960, 969 (Pa. 2019).

           In applying the above test, we may not weigh the evidence and
           substitute our judgment for the fact-finder. In addition, we note
           that the facts and circumstances established by the
           Commonwealth need not preclude every possibility of innocence.
           Any doubts regarding a defendant’s guilt may be resolved by the
           fact-finder unless the evidence is so weak and inconclusive that
           as a matter of law no probability of fact may be drawn from the
           combined circumstances. The Commonwealth may sustain its
           burden of proving every element of the crime beyond a reasonable
           doubt by means of wholly circumstantial evidence. Moreover, in
           applying the above test, the entire record must be evaluated and
           all evidence actually received must be considered. Finally, the
           finder of fact while passing upon the credibility of witnesses and


____________________________________________


2   The Commonwealth did not file a brief in this matter.

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      the weight of the evidence produced, is free to believe all, part or
      none of the evidence.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)

(citations and quotation marks omitted).

      Appellant challenges the sufficiency of the evidence only for his first-

degree murder conviction.     A person is guilty of first-degree murder if he

intentionally kills another human being. 18 Pa.C.S. § 2502(a) and (d). In

order to prove first-degree murder, the Commonwealth must establish: “that

a human being was unlawfully killed; the defendant was responsible for the

killing; and the defendant acted with malice and a specific intent to kill.”

Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa. 2011).

      Appellant contends that there was insufficient physical evidence linking

him to the scene of the crime, and hence, his first-degree murder conviction

is infirm. In support thereof, Appellant argues that the police investigation

had stalled prior to his interview due to a lack of forensic evidence.

      Preliminarily, we note that physical evidence linking the accused to the

scene of the crime is not an element of the crime of first-degree murder. Thus,

Appellant’s sole sufficiency argument does not implicate the sufficiency of the

evidence at all, and is unavailing. Furthermore, the evidence supports the

conviction. Appellant confessed to the murder, providing specific details of

the crime that would be known only to police and the perpetrator. In addition,

he admitted that he obtained a knife from the kitchen on his way to the

victim’s bedroom, and that he used it to stab the victim repeatedly. Such

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evidence suggests that he specifically intended to kill the victim when he went

into the bedroom, and that he acted with malice. See Commonwealth v.

Thomas, 54 A.3d 332 (Pa. 2012) (holding that specific intent to kill, as well

as malice, can be inferred from the use of a deadly weapon upon a vital part

of the victim’s body.). Here, the evidence, viewed in the light most favorable

to the Commonwealth, supports the jury’s finding that Appellant intentionally

murdered the victim. No relief is due.

      Appellant next challenges the weight of the evidence. Our standard of

review for a challenge to the weight of the evidence is well-settled:

      When we review a weight-of-the-evidence challenge, we do not
      actually examine the underlying question; instead, we examine
      the trial court’s exercise of discretion in resolving the challenge.
      This type of review is necessitated by the fact that the trial judge
      heard and saw the evidence presented. Simply put, [o]ne of the
      least assailable reasons for granting or denying a new trial is the
      lower court’s conviction that the verdict was or was not against
      the weight of the evidence and that a new trial should be granted
      in the interest of justice. A new trial is warranted in this context
      only when the verdict is so contrary to the evidence that it shocks
      one’s sense of justice and the award of a new trial is imperative
      so that right may be given another opportunity to prevail.

      Of equal importance is the precept that, the finder of fact . . .
      exclusively weighs the evidence, assesses the credibility of
      witnesses, and may choose to believe all, part, or none of the
      evidence.

Commonwealth v. Rayner, 153 A.3d 1049, 1056 (Pa.Super. 2016)

(quotation marks and citation omitted).

      Appellant argues that the jury accorded too much weight to his coerced

confession. He claims further that the true perpetrators of the murder were


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more likely the persons who accompanied the victim to a bar that Friday

evening.     Appellant points to his cooperation with law enforcement as

evidencing his good will in assisting with the case and argues that the jury did

not afford it proper weight. Finally, Appellant argues that, if he was found

culpable at all, a conviction for third-degree murder would have been more

appropriate than the conviction of first-degree murder, as he was agitated by

the victim’s sexual advances.

      Appellant’s weight of the evidence argument was preserved in a timely

post-sentence motion. Nonetheless, it affords him no relief. As the trial court

correctly noted, the jury was free to weigh the evidence, assess the credibility

of the witnesses, and choose to believe all, part, or none of the evidence

presented at trial.   Commonwealth v. Rayner, 153 A.3d 1049, 1056

(Pa.Super. 2016). With regard to the evidence, the trial court observed the

following:

      The fact that the Commonwealth did not investigate the
      individuals that were with the Victim at the bar the night he was
      murdered or the fact that law enforcement did not confirm the
      Victim’s presence at the bar does not shift the weight of the
      evidence in favor of the Appellant. Neither does the argument
      that the jury failed to consider the false confession by the
      Appellant after numerous interrogations by law enforcement that
      lasted for hours.

Trial Court Opinion, 2/18/20, at 9. The trial court concluded that none of

Appellant’s arguments was so compelling as to shift the weight of the evidence

in his favor. Id. In denying Appellant’s motion for a new trial on this basis,




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the trial court found that jury’s verdict did not shock its conscience. Id. at

10. We have no basis to disturb the trial court’s finding.

      Next Appellant challenges the court’s denial of his motion to suppress

the statements he made to police on May 17, 2016.            The interview was

recorded, and was played at the suppression hearing and at trial.

      In suppression matters,

      Our review is limited to determining whether the record supports
      the findings of fact of the suppression court and whether the legal
      conclusions drawn from those findings are correct. . . . We are
      bound by the factual findings of the suppression court, which are
      supported by the record, but we are not bound by the suppression
      court’s legal rulings, which we review de novo.

Commonwealth v. James, 69 A.3d 180, 186 (Pa. 2013) (citation omitted).

      Appellant’s central argument for the suppression of his confession is that

it was not voluntary.   See Appellant’s brief at 17. He claims that he was

coerced to confess during repeated police interrogations, and further, that he

had not taken his medication prior to the confession. Viewing the totality of

the circumstances surrounding his confession, Appellant contends that the

interrogation deprived him of the ability to make a free and unconstrained

decision to confess, citing Commonwealth v. Nester, 709 A.2d 879, 882

(Pa. 1998) (holding that the touchstone inquiry is whether the confession is

voluntary, a determination made from the totality of the circumstances).

Appellant directs our attention to the five-part test in Nester for determining

voluntariness of a confession: (1) the duration and means of the interrogation;

(2) the physical and psychological state of the accused; (3) the conditions



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attendant to the detention; (4) the attitude of the interrogator; and (5) any

and all other factors that could drain a person's ability to withstand suggestion

and coercion. Id.       He contends that, given his physical and psychological

state and the duration of the interrogation, his confession was involuntary.

       At the suppression hearing, the Commonwealth offered the testimony

of Agent Ferrari.3 He testified that in May 2016, Appellant was confined in the

Dauphin County Prison on unrelated charges. Appellant completed a request

form seeking permission to discuss details of Mr. McCarty’s death with the

officer in charge of the case, then-Detective Ferrari. The police obtained the

necessary release to procure Appellant and put him in leg shackles and

handcuffs for transport to the Harrisburg Police Station.      During the ride,

Appellant was given his Miranda warnings.           N.T. Suppression Hearing,

8/6/18, at 11. Agent Ferrari testified that Appellant started talking in the car,

and that “he wanted to talk.” Id. at 13.

       Appellant was taken to a conference room.           His handcuffs were

removed, he was given water and cigarettes, and a pre-interview was

conducted for approximately one hour during which Appellant described how

he had murdered Mr. McCarty. The detective asked him if he was “comfortable

going on recording with this, if he’s comfortable proceeding without an

attorney, he’s comfortable talking to us still[,]” and verified that he

____________________________________________


3 Detective Ferrari is referred to as Agent Ferrari in both the suppression and
trial notes of testimony as he was then employed as a Special Agent for the
Attorney General of Pennsylvania’s Bureau of Criminal Investigation.

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understood his Miranda warnings. Id. at 15. An official statement was then

recorded.

       The audiotape was played for the court.4    Appellant indicated on the

tape that he understood his Miranda rights, that he had a right to counsel,

and that he was comfortable proceeding without an attorney.         He then

recounted the following. Several days before Ted McCarty’s murder, Appellant

was drinking and smoking marijuana on his porch when Mr. McCarty

approached and asked if he could buy some marijuana. Appellant sold him

some marijuana.        The next day they drank beer and smoked marijuana

together on Mr. McCarty’s porch.

       On Friday, September 4, 2015, Appellant was distraught over the fact

that his girlfriend was not being a good mother to her daughter. It reminded

Appellant of his own mother’s failure to protect him from sexual abuse

perpetrated by his older brothers. He went over to Mr. McCarty’s apartment

because he needed to talk to someone. Mr. McCarty led him to the bedroom,

and on the way there, Appellant picked up a knife in the kitchen. They smoked

marijuana and Mr. McCarty smoked crack cocaine. Mr. McCarty offered him

$400 for sex, and Appellant refused the offer and attempted to leave. Mr.

McCarty blocked the exit and began to make sexual advances towards
____________________________________________


4 The Suppression Hearing transcript does not contain the substance of
Appellant’s recorded statement. However, a transcript of the statement was
admitted as Commonwealth Exhibit 2. The suppression court summarized the
contents of Appellant’s May 2016 statement in its Memorandum Opinion, and
we have borrowed heavily from its account in our pared-down version herein.
See Memorandum Opinion, 3/25/20, at 3-4.

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Appellant. Appellant, upset at the victim’s advances, attacked the victim with

the knife, stabbing him repeatedly.

      Appellant told police that after stabbing Mr. McCarty, he went home,

threw away his bloody clothes and knife, showered, and went to bed. He also

mentioned that he took Seroquel to sleep, and Celexa for mood swings.

Appellant maintained that he acted in self-defense and told the officers that

he needed to tell someone because it was eating away at him. At the end of

his statement, he added that Detective Ferrari and Sergeant Gautsch had

treated him fairly, that he was not under the effects of drugs or alcohol, and

that he had not been offered any promises or been threatened.

      Agent Ferrari testified that, throughout the interview, Appellant was

calm, cooperative, understood the questions asked, and did not appear to be

under the influence of any drugs. Appellant stated that he understood his

Miranda rights.

      Appellant offered uncontradicted evidence at the suppression hearing

that he had refused his Celexa and Seroquel for several days between April

28, 2016 and his interview on May 17, 2016, including the day before the

interview.    His medical record indicated that he took his prescribed

medications upon his return from the interview.

      As our Supreme Court recently reaffirmed in Commonwealth v.

Raghunandan Yandamuri, 159 A.3d 503, 525 (Pa. 2017), “when a

defendant alleges that his confession was involuntary, the inquiry becomes


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‘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.’”

(quoting Commonwealth v. Templin, 795 A.2d 959, 966 (Pa. 2002)). Such

a determination is made based on the totality of the circumstances

surrounding the confession, and the burden is on the Commonwealth to prove

that a defendant voluntarily confessed.       Nester, supra at 882. Appellant

contends that the court failed to recognize his mental health condition and his

refusal to take his medications at the time of the May 17, 2016 statement.

Appellant’s brief at 19.   He also points out that although Detective Ferrari

indicated that he advised Appellant of his Miranda rights prior to the

interview, he did not reiterate those rights on the recording or obtain a written

waiver. Id.

      The suppression court applied the totality of the circumstances test and

concluded that Appellant’s confession was voluntary. It found that Appellant

initiated contact with then-detective Ferrari, expressly stated that he

understood his Miranda rights, and voluntarily waived his right to counsel.

Appellant was calm and cooperative, and stated that he had been treated fairly

by the officers. Memorandum Opinion, 3/25/20, at 6. The fact that Appellant

had been questioned before, and that he sometimes refused his medication

during the days prior to the confession, “did not tip the scales in his favor” in

the view of the suppression court. Id. In short, the suppression court found


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no evidence that Appellant “was deprived of his ability to make a free and

unconstrained decision to confess.” Id.

      The record reveals that evidence regarding Appellant’s refusal to take

his medications was presented at the suppression hearing, and thus,

considered by the suppression court. While Appellant did not receive Miranda

warnings again during the audiotaping, he acknowledged on the recording that

he understood his rights and wished to proceed without counsel. While the

best practice is to obtain either written or oral confirmation that a defendant

understands his Miranda rights prior to interrogation, a written waiver is not

required.   See Commonwealth v. Cohen, 53 A.3d 882, 887 (Pa.Super.

2012) (reversing suppression of statement where the totality of the

circumstances manifested defendant’s understanding of his rights and his

intent to waive them even though he did not sign a written waiver or vocalize

his understanding).

      The suppression court correctly recited and applied the law governing

the voluntariness of confessions, and concluded that the Commonwealth

proved by a preponderance of the evidence that, viewing the totality of the

circumstances, Appellant’s confession was voluntary. Its findings are amply

supported by the record, and we have no basis to disturb its ruling.

      Finally, Appellant alleges that he is entitled to a new trial because the

prosecutor engaged in misconduct when he misstated the definition of third-

degree murder in closing arguments. Our standard of review of an allegation


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of prosecutorial misconduct is well-settled: “Comments by a prosecutor

constitute reversible error only where their unavoidable effect is to prejudice

the jury, forming in their minds a fixed bias and hostility toward the defendant

such that they could not weigh the evidence objectively and render a fair

verdict.”   Commonwealth v. Hutchinson, 25 A.3d 277, 307 (Pa. 2011)

(citations and quotation marks omitted).

      The prosecutor initially referred to third-degree murder as “a reckless

killing.” N.T. Jury Trial Vol. III, 10/24/18, at 484. Just moments later, as the

prosecutor was concluding, he reminded the jury: “Again, this argument that

this is third-degree murder, that it is a reckless causation of death, almost a

grossly negligent causation of death is offensive. It is offensive.” Id. at 488.

      At the conclusion of the Commonwealth’s closing argument, the defense

requested a sidebar. Even before the defense could voice its objection to the

prosecutor’s definition of third-degree murder as “reckless,” the trial court

anticipated the nature of the objection. The attorney for the Commonwealth

initially maintained that he correctly stated the law, but retreated from that

position when the trial court pointed out his misconception. The trial court

assured the defense it would correctly instruct the jury on third-degree

murder. See id. at 490 (“And I’m going to make it very clear what third-

degree murder is and what the elements are, and it’s not a reckless killing.”).

      Just moments later, the court began to charge the jury, first reminding

the jurors that the speeches of the attorneys are not evidence. See id. at


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493. Shortly thereafter, the trial court gave the following instruction defining

third-degree murder in accordance with Pennsylvania Suggested Standard

Jury Instructions (Crim.) § 15.2501A, providing in pertinent part:

      For murder of the third degree, a killing – a killing is with malice
      if the defendant’s actions show his wanton and willful disregard of
      an unjustified and extremely high risk that his conduct will result
      in death or serious bodily injury to another. In this form of malice,
      the Commonwealth need not prove that the defendant specifically
      intended to kill another.       The Commonwealth must prove,
      however, that he took action while consciously, that is, knowingly
      disregarding the most serious risk he was creating, and that, by
      his disregard of that risk, he demonstrated his extreme
      indifference to the value of human life.

N.T. Jury Trial Vol. III, 10/24/18, at 498.

      In its opinion, the trial court pointed out that the definition of malice for

purposes of third-degree murder includes language similar to recklessness.

See Trial Court Opinion, 2/18/20, at 11 (quoting Commonwealth v. Pigg,

391 A.2d 438,441 (Pa. 1990), defining malice for purposes of third-degree

murder as “a wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences, and a mind regardless of social duty, although

a particular person may not be intended to be injured”). It concluded that no

prejudicial error resulted, and we concur in that assessment.          Trial Court

Opinion, 2/18/20, at 11. The court’s instruction remedied any potential harm.

      Appellant claims further that even though the correct definition was

subsequently provided to the jury, the court never explicitly instructed the

jury that the word “reckless” should not have been used in reference to third-

degree murder, and hence, this was confusing.          We note, however, that

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Appellant did not request a curative instruction. Thus, any claim of error in

this regard was not preserved. See Commonwealth v. Sandusky, 77 A.3d

663, 670-71 (Pa.Super. 2013) (finding waiver where although defendant

objected to specific conduct, he failed to request a curative instruction or

mistrial); accord Commonwealth v. Manley, 985 A.2d 256, 267 n.8

(Pa.Super. 2009).   Furthermore, this alleged error was not articulated in

Appellant’s Rule 1925(b) concise statement of errors complained of on appeal,

and thus, it is not preserved for appellate review on that basis as well. See

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/31/2020




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