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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TODD O. REEDER

                            Appellant                 No. 977 MDA 2015


             Appeal from the Judgment of Sentence May 21, 2015
             In the Court of Common Pleas of Huntingdon County
             Criminal Division at No(s): CP-31-CR-0000627-2013


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 09, 2016

        Appellant, Todd O. Reeder, appeals from the May 21, 2015 aggregate

judgment of sentence of three and a half to twelve years’ incarceration,

imposed after the trial court convicted Appellant of robbery, theft by

unlawful taking, possession of a weapon, and simple assault.1 Upon review,

we affirm.

        The certified record reveals that Appellant was arrested and charged

with the aforementioned crimes arising from the armed robbery of a Rite-Aid

Pharmacy in Mount Union Borough, Pennsylvania, on November 19, 2013.

Appellant filed an omnibus pre-trial motion on May 20, 2014, in which, inter
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3701, 3921, 907 and 2701, respectively.
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alia, he sought to suppress statements he made to police on November 21,

2013, on the basis that he was “highly intoxicated.” On October 16, 2014,

the trial court convened an evidentiary hearing, and subsequently issued an

order denying Appellant’s motion to suppress.      On January 21, 2015, the

trial court filed a memorandum in support of its order denying suppression.

The case proceeded to a bench trial on March 17, 2015, after which the trial

court rendered its guilty verdicts. The trial court sentenced Appellant to an

aggregate sentence of three and a half to twelve years of incarceration on

May 21, 2015.

      Appellant filed a timely appeal on June 9, 2015. The following day, the

trial court ordered Appellant to comply with Pennsylvania Rule of Appellate

Procedure 1925(b).        Appellant filed his concise statement of errors

complained of on appeal on June 29, 2015, and the trial court filed a

responsive memorandum on July 9, 2015, in which it referenced its January

21, 2015 memorandum, stating it was “satisfied that in that adjudication we

adequately explained our reason for denying the motion to suppress.”

Memorandum, 7/9/15, at 3.

      On appeal, Appellant presents his suppression issue for our review as

follows.

           1. Whether the trial court erred and abused its discretion
              in denying Appellant’s Motion to Suppress statements
              made upon his arrest?

Appellant’s Brief at 5.



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       Appellant specifically contends that the statements he made to police

should have been suppressed because “the police impermissibly questioned

him” when “he was too intoxicated to legally waive his rights to remain

silent.” Id. at 9.

       Our standard of review from an order denying a suppression motion is

as follows.

              [W]e may consider only the Commonwealth’s
              evidence and so much of the evidence for the
              defense as remains uncontradicted when read in the
              context of the record as a whole. Where the record
              supports the factual findings of the trial court, we are
              bound by those facts and may reverse only if the
              legal conclusions drawn therefrom are in error.

Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citation

omitted).2


____________________________________________


2
  Our Supreme Court recently clarified our scope of review when considering
a challenge to a trial court’s suppression ruling as it relates to “the extent of
the record that the appellate court consults when conducting that
review.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). The Supreme Court
held that such review is limited to the suppression hearing record, and “it is
inappropriate to consider trial evidence as a matter of course, because it is
simply not part of the suppression record, absent a finding that such
evidence was unavailable during the suppression hearing.” Id. at
1085. Because prior cases held that a reviewing court could consider the
trial record in addition to the suppression record, our Supreme Court
determined that the more limited scope announced in In re L.J. would apply
prospectively to cases where the suppression hearing occurred after October
30, 2013. Id. at 1088-1089. Instantly, the subject suppression hearing
was held on October 16, 2014. Accordingly, our scope of review is confined
to the suppression hearing record.



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      Here, our independent review of the record reveals that four witnesses

testified   at   the   suppression   hearing.   The   Commonwealth    called

Pennsylvania State Trooper Michael Davis, while Appellant called two of his

attorneys and took the stand on his own behalf.

      Trooper Davis testified to responding to a call “that the Rite Aid in

Mount Union had been robbed by an individual wearing a mask, brandishing

a gun.” N.T., 10/16/14, at 6. Trooper Davis received a tip that Appellant

was a “person of interest,” and obtained a search warrant for Appellant’s

home, where police found evidence “linking [Appellant] to the robbery.” Id.

Appellant was “taken into custody and transported back to state police

Huntington where he was met by [Attorney] Newfield of the Public

Defender’s Office.” Id. at 6-7. After Appellant met with Attorney Newfield,

he was interviewed by Trooper Davis and Trooper Aungst. Id. at 7. Trooper

Davis testified that prior to interviewing Appellant, he “read the whole

Miranda to him.” Id. Trooper Davis further stated that Appellant “relayed

that he understood and chose to speak with me.”         Id.   Trooper Davis

proceeded to interview Appellant in the presence of Attorney Newfield. Id.

Trooper Davis described Appellant’s demeanor as follows.

                   [TROOPER DAVIS:]      He was cognizant of his
             surroundings. He knew where he was. While we
             were on scene at his house, we attempted to speak
             with him there.    At that point he requested an
             attorney so we set up the meeting with Mr. Newfield
             for that night. He had the presence of mind to ask
             for an attorney.


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                   THE COURT:           Was he intoxicated?

                    [TROOPER DAVIS:]       I would say that he
              was under the influence of some pills, but I don’t
              think he was intoxicated to the degree that he could
              not make a sound decision.

                   [COMMONWEALTH:]

                   Q.    What indicia       of   intoxication   did   you
                         notice?

                   A:    Pinpoint pupils.

                   Q:    Was he staggering?

                   A:    No.

                   Q:    Slurring his words?

                   A:    No.

                   Q:    Did he seem aware and lucid during the
                         interview?

                   A:    Yes, he did.

Id. at 7-8.

      Trooper Davis added that Appellant had the dexterity to write his

signature, and did not slur his words or seem confused. Id. at 9. He further

testified that he did not think that Appellant was under the influence of

alcohol, and did not smell any alcohol. Id. at 10. Trooper Davis could not

recall Appellant saying anything about being under the influence during the

interview, although Appellant did mention “during his interview at the

barracks of how intoxicated he was during the robbery itself.” Id. at 11.

      Next, Appellant waived his attorney-client privilege and called Attorney

Nicholas Newfield, who testified to being a public defender and meeting with



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Appellant prior to his interview with police. Attorney Newfield stated, “When

I first walked in the room, when I first walked in, he said he planned on

talking to the police and if I was going to tell him otherwise, I can leave

now. … I told him, ‘Relax. Let me talk to you. Sit down. Let’s just kind of

talk between me and you.’” Id. at 14. Attorney Newfield further explained,

“First I told him talk to me and then we will go from there. Just tried to get

him to kind of ease down and give me information or at least talk to me as

his counsel and we will see where it goes from there. I think I did a good

job of having him just talk to me about it.” Id. at 15. Attorney Newfield

“told him wait until Tuesday.      I assumed there would be a preliminary

hearing the following week. … I said, ‘Let me go out and talk to the D.A. to

see if we can get some kind of offer if you’re gonna talk.’”            Id. at 16.

Specifically, Attorney Newfield advised Appellant as follows.

                    I told him not to [talk to the police]. I advised
            him it would be better just to wait until Tuesday and
            sleep on it, think about it, give [him] some more
            time. At that time point he was still adamant on
            speaking. … He said he was talking. He said, again,
            if I told him not to, I could leave now; he didn’t need
            me there; he was going to talk to them and give
            them a statement.

Id. at 16-17.

      Regarding    Appellant’s   demeanor,     Attorney    Newfield      described

Appellant as “appearing tired.” Id. at 17. He said “[t]hat stood out more so

than anything.    He just appeared tired.    Speaking-wise, though, we were




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able to hold a conversation. He understood what I was explaining to him.

Coherent.” Id.

      Appellant next waived his attorney-client privilege and called Attorney

Jennifer Habel, who also was a public defender, and who had been appointed

to represent Appellant at his preliminary hearing. Id. at 20. Attorney Habel

testified that Appellant “was very adamant that he did not want Attorney

Newfield to be with him for that particular pre-trial conference … and

[Appellant] was extremely upset at Attorney Newfield because he believed

that he had been promised State Intermediate Punishment and that was the

reason he gave a statement. … [Appellant] said he was extremely messed

up that night. … I believe he had been a heavy [drug] user for a number of

years, and he was coming off of something.” Id. at 22-23. Attorney Habel

explained as follows.

                   He was very angry at Attorney Newfield during
             that meeting.    That might have been his exact
             words. He has said to me on numerous occasions he
             believed he was extremely messed up. I wasn’t
             there. Any conversation I have had with Attorney
             Newfield was that he believed he was fine.

Id. at 23.

      Lastly, Appellant testified that he was “absolutely” under the influence

of “Xanax, Adderall, percoset and heroin” when he made his statements to

police. Id. at 24-25. He claimed to have ingested “at least 10 pills” before

he “walked out to see the police.” Id. at 25. Appellant testified he had been

using drugs “all that day.”   Id.   He stated that he “wasn’t coherent” and

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“had no recollection of what actually happened.”       Id. at 26.    Appellant

averred, “I was extremely messed up.       My level of intoxication was very

high. It’s possibly been the highest ever in my life.” Id. at 27. Appellant

elaborated as follows.

                   I really don’t recall even speaking to Trooper
            Davis. I don’t recall speaking to Mr. Newfield. I
            don’t recall the investigation as it happened that
            night. The one thing I do recall is having a police
            officer asking me a question over my shoulder and
            me realizing I was speaking to the police and me
            stating I shouldn’t be speaking to anybody right now
            I’m so messed up on Xanax, percoset, Adderall; I
            haven’t slept in days; I shouldn’t be speaking to
            anybody.

                   And that’s when I saw a person who I later
            found out was Mr. Newfield stand up, put his arms in
            the air, and tell me, “But I can get you SIP.” And I
            remember looking up and seeing District Justice Wilt
            and a court reporter, and that is my entire
            recollection of the night I was arrested.

Id. at 27-28.

      After hearing from the four witnesses, the trial court denied Appellant’s

suppression motion, stating that it would “file written findings and

conclusions after the preparation of a transcript.” Id. at 32. On January 21,

2015, the trial court filed its memorandum in which it credited the testimony

of Trooper Davis and Attorney Newfield, and concluded that Appellant “had

sufficient mental capacity at the time of giving his statement to know what

he was saying and to have voluntarily intended to say it.”      Memorandum,

1/21/15, at 6, citing Commonwealth v. Smith, 291 A.2d 103 (Pa. 1971).



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     It is clear from our review that the trial court as factfinder did not

abuse its discretion in accepting as credible the testimony of Trooper Davis

and Attorney Newfield. As detailed above, the trial court’s factual findings

are supported by the record. Furthermore, the trial court’s legal conclusions

are not erroneous. Russo, supra. We have explained as follows.

           [T]he law in Pennsylvania pertaining to the waiver of
           Miranda warnings while intoxicated is well-settled:

                 The fact that an accused has been drinking
                 does     not    automatically   invalidate   his
                 subsequent incriminating statements. The test
                 is whether he had sufficient mental capacity at
                 the time of giving his statement to know what
                 he was saying and to have voluntarily intended
                 to say it. Recent imbibing or the existence of a
                 hangover does not make his confession
                 inadmissible, but goes only to the weight to be
                 accorded to it.

           Commonwealth v. Adams, 385 Pa.Super. 513, 561
           A.2d 793, 795 (1989) (citation omitted). “[W]hen
           evidence of impairment is present, it is for the
           suppression    court   to  decide     whether    the
           Commonwealth has established by a preponderance
           of the evidence that the suspect nonetheless had
           sufficient cognitive awareness to understand the
           Miranda warnings and to choose to waive his
           rights.” Commonwealth v. Britcher, 386 Pa.Super.
           515, 563 A.2d 502, 507 (1989) (citations omitted).

Commonwealth v. Ventura, 975 A.2d 1128, 1137-38 (Pa. Super. 2009)

(footnote omitted), appeal denied, 987 A.2d 161 (Pa. 2009).

     Based on the foregoing, we find no merit to Appellant’s claim that the

trial court erred and abused its discretion in determining that Appellant had

sufficient mental capacity when he made his statements, and thus denying


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Appellant’s suppression motion. Accordingly, we affirm Appellant’s judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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