J-S05030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL TYRONE WALKER,

                            Appellant                 No. 933 MDA 2015


             Appeal from the Judgment of Sentence May 29, 2015
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001328-2012


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 18, 2016

       Appellant, Michael Tyrone Walker, appeals from the judgment of

sentence entered following his convictions of one count each of murder of

the first degree, murder of the second degree, murder of the third degree,

robbery, burglary, criminal trespass, theft, receiving stolen property,

possessing instruments of crime, and eight counts of conspiracy. We affirm.

       The trial court summarized the factual history of this case as follows:

             On December 19, 2011, Pennsylvania State Police (PSP)
       Trooper Michael Koslosky was dispatched to 720 Chestnut
       Street, in Shoemakersville, Berks County, in response to a
       suspected residential burglary. When Trooper Koslosky arrived
       at the residence, he was met by the homeowner, Brian Trump.
       Mr. Trump told the officer that when he arrived home from work
       that afternoon around 4:00 p.m., his home was in disarray. Mr.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S05030-16


     Trump estimated that he was missing approximately $8,000.00
     in cash and two handguns. Other suspicious items were found
     inside the home, including discarded vinyl gloves, a prybar, and
     blood spatter in the hallway and bedroom.

           Mr. Trump explained to Trooper Koslosky that his house
     guest, Stephen Leibensperger, had not been located. Mr.
     Leibensperger had recently relocated and was staying with Mr.
     Trump. Trooper Matthew Brady, a criminal investigator with the
     PSP Hamburg barracks, arrived to provide assistance with
     Trooper Koslosky’s initial investigation. The officers decided to
     canvas the neighborhood. Troopers Brady and Koslosky
     conducted a more thorough search of the residence. Trooper
     Brady then located a large pool of blood in the bedroom.
     Resting in the pool of blood was a black plastic handle from a
     kitchen knife.     Subsequently, Troopers Brady and Koslosky
     located the body of Stephen Leibensperger wrapped in sheets
     and bedding in the attic of Mr. Trump’s residence. Trooper
     Brady officially declared the residence a crime scene.

            Information from neighbors led investigators to the
     retrieval of videotape footage from a Berks Area Reading
     Transportation Authority (BARTA) bus depicting three black
     males, all dressed in black clothing. These individuals were
     identified as Appellant, Mark Ellis, Sr., and Brian Simpkins.
     Cameras located on the bus traveling from Reading to
     Shoemakersville, captured images of the suspects during a mid-
     morning route on December 19, 2011.         Additionally, police
     obtained surveillance footage from a Sheetz gas station on
     Shoemakersville Avenue depicting the same three individuals
     exiting the bus at approximately 10:30 a.m. and walking on
     Noble Avenue toward Chestnut Street.

           Brian Trump was interviewed by Trooper Brady and
     immediately identified Appellant to police as a person of interest.
     Earlier in the day on December 19, Mr. Leibensperger called Mr.
     Trump at work to inform him that Appellant had been calling the
     house all morning.       Trump informed Trooper Brady that
     Appellant had been an intimate friend of his and was upset when
     Mr. Leibensperger moved in with Mr. Trump a few weeks before
     the incident. Police showed Mr. Trump images obtained from the
     BARTA and Sheetz videotapes and he identified Appellant as one
     of the men in the images.


                                    -2-
J-S05030-16


              Appellant was arrested at a Rodeway Inn between the
        hours of midnight and 2:00 a.m. of December 20, 2011. At the
        time of Appellant’s arrest, police seized a black hooded
        sweatshirt, a New York Yankees baseball hat similar to one
        depicted in the surveillance video, $1,077 in cash and a pair of
        white long johns that appeared to be stained with blood.
        Glassine packets with white residue, a glass smoking pipe, and a
        copper-colored screen were also found by police in the hotel
        room where Appellant was staying.

               After the arrest, Appellant was transported to the police
        barracks in Hamburg, Pennsylvania. Appellant was placed in an
        interview room with Trooper Wegscheider and Trooper Brady.
        During the interview, Appellant stated that on December 19,
        2011, Appellant, his father Mark Ellis, and step-brother Brandon
        Simpkins took the [BARTA] bus from Reading to Shoemakersville
        and then walked to Mr. Trump’s residence. Appellant stated that
        the three individuals entered the residence and Appellant then
        confronted Mr. Leibensperger with a knife. Appellant admitted to
        stabbing the victim several times causing the death of Mr.
        Leibensperger.     Appellant, Mr. Ellis, and Mr. Simpkins then
        searched the residence and removed cash and two handguns
        from the residence. During the interview, Appellant expressed
        that it was his intention to kill Mr. Leibensperger and Mr. Trump.
        Appellant explained that after the incident, the men left the
        residence to take the [BARTA] bus back to Reading.

              On December 20, 2011, Appellant received a screening
        and health assessment at Berks County Jail. Appellant received
        detoxification treatment for alcohol at the Berks County Jail until
        December 25, 2011.

              On December 21, 2011, around 3:00 in the afternoon,
        Trooper Brady and Trooper Wegscheider visited Appellant in
        Berks County Prison. Trooper Brady provided Appellant with the
        standard Miranda[1]waiver form which Appellant acknowledged
        and signed. Trooper Brady asked Appellant several questions in
        order to clarify issues relating to Appellant’s accomplices and the
        knife found at the crime scene.         The Troopers[’] follow-up

____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -3-
J-S05030-16


      interview at Berks County Prison with Appellant lasted around
      twenty (20) minutes.

Trial Court Opinion, 7/14/15, at 4-6.

      The trial court explained the procedural history as follows:

            Appellant was charged with Murder of the First Degree,
      Murder of the Second Degree, Murder of the Third Degree,
      Robbery, Burglary, Criminal Trespass, Theft By Unlawful Taking
      or Disposition, Receiving Stolen Property, Possession of
      Instruments of Crime, Conspiracy to Commit Murder of the First
      Degree, Conspiracy to Commit Murder of the Second Degree,
      Conspiracy to Commit Murder of the Third Degree, Conspiracy to
      Commit Robbery, Conspiracy to Commit Burglary, Conspiracy to
      Commit Criminal Trespass, Conspiracy to Commit Theft By
      Unlawful Taking or Disposition, and Conspiracy to Commit
      Receiving Stolen Property.

             On or about March 19, 2013, the Appellant filed an
      Omnibus Pretrial Motion, which the court scheduled for May 9,
      2013. On or about May 9, 2013, the Appellant withdrew his
      Omnibus Pretrial [M]otion. On or about May 13, 2013, this
      Court entered an order directing Dr. Rotenberg to conduct a
      follow-up reevaluation of the Appellant’s mental health status
      upon his return to the Berks County Jail System from the
      Norristown State Hospital.    On September 10, 2013, [the]
      Commonwealth filed a “Motion to Compel the Defense to Provide
      the Commonwealth with Copies of Any Data or Result Produced
      from Psychological Testing Conducted on the Defendant by their
      Mental Health Expert Pursuant to Pa.R.Crim.P. 573 (C)(1)(A).[”]
      On or about October 2, 2013, this Court entered an order
      directing Dr. Rotenberg to re-evaluate Appellant with regard to
      the issues of competency, insanity, guilty but mentally ill, and
      capacity to form specific intent for the crimes charged. Dr.
      Rotenberg was ordered to submit a report to defense counsel
      only. On November 18, 2013, a case status was scheduled for
      January 10, 2014 with Rule 600 being waived by [Appellant].
      On January 10, 2014, an Omnibus Pretrial Motion Hearing was
      scheduled for March 4, 2014.

           Pretrial Hearings were held on March 4, 2014 and March
      14, 2014. At the end of the March 14, 2014 hearing, Defense
      Counsel, Elizabeth M. Ebner, Esquire, requested a continuance to

                                     -4-
J-S05030-16


     discuss with Appellant the possibility of Appellant taking the
     stand at the pretrial hearing. On May 2, 2014, Defense Counsel
     requested a mental health evaluation for Appellant by Dr.
     Rotenberg and requested a continuance of the pretrial hearing.
     On July 3, 2014, Defense Counsel filed a Motion to Withdraw as
     Court Appointed Counsel. On July 21, 2014, Attorney Ebner’s
     Motion to Withdraw was granted by this Court. On July 21,
     2014, this Court appointed Jay Nigrini, Esquire as Counsel for
     Defendant. On October 22, 2014, a final Omnibus Pretrial
     hearing was held. On December 10, 2014, this Court filed an
     order and opinion dismissing Appellant’s Omnibus Pretrial
     Motion.

           A jury trial was held from April 20, 2015 through April 23,
     2015. On April 23, 2015, Appellant was found guilty of: Count 1
     - Murder of the First Degree; Count 2 - Murder of the Second
     Degree; Count 3 - Murder of the Third Degree; Count 4 -
     Robbery; Count 5 - Burglary; Count 6 - Criminal Trespass; Count
     8 - Theft by Unlawful Taking or Disposition; Count 9 - Receiving
     Stolen Property; Count 10 - Possessing Instruments of Crime;
     Count 11 - Conspiracy to Commit Murder of the First Degree;
     Count 12 - Conspiracy to Commit Murder of the Second Degree;
     Count 13 - Conspiracy to Commit Murder of the Third Degree;
     Count 14 – Conspiracy to Commit Robbery; Count 15 -
     Conspiracy to Commit Burglary; Count 16 - Conspiracy to
     Commit Criminal Trespass; Count 18 - Conspiracy to Commit
     Theft by Unlawful Taking or Disposition; and Count 18 -
     Conspiracy to Commit Receiving Stolen Property.

           On May 29, 2015, Appellant was sentenced on Count 1,
     Murder of the First Degree, to the Bureau of Corrections for
     confinement in a State Correctional Facility for life. On Count 4,
     Robbery, Appellant was sentenced to not less than 5.5 years nor
     more than 20 years of incarceration to commence at the
     expiration of the sentence imposed at Count 1. On Count 5,
     Burglary, Appellant was sentenced to not less than 2.5 years nor
     more than 20 years of incarceration to commence at the
     expiration of the sentence imposed at Count 1 and to run
     concurrent with Count 4. On Count 10, Possessing Instruments
     of Crime, Appellant was sentenced to not less than 1 year nor
     more than 5 years of incarceration to commence at the
     expiration of the sentence imposed at Count 1 and to run
     concurrent with Counts 4 and 5. On Count 11, Conspiracy to
     Commit Murder of the First Degree, Appellant was sentenced to

                                   -5-
J-S05030-16


      not less than 20 years nor more than 40 years of incarceration
      to commence at the expiration of the sentence imposed at Count
      1 and to run concurrent with Counts 4, 5, and 10.

Trial Court Opinion, 7/14/15, at 1-3.       This timely appeal followed.     Both

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

      Appellant presents the following issue for our review:

      1. Whether the trial court erred in denying Appellant’s motion to
      suppress the Appellant’s written and spoken confessions as the
      Appellant was under the influence of cocaine at the time Miranda
      was provided which rendered the Appellant unable to knowingly
      and voluntarily waive his right to remain silent?

Appellant’s Brief at 4.

      In his sole issue, Appellant argues that the trial court erred in failing to

grant the motion to suppress his oral and written confessions after he was

arrested. Appellant’s Brief at 9-10. Appellant asserts that the confessions

should have been suppressed because he was under the influence of

controlled substances and therefore did not knowingly and voluntarily waive

his right to remain silent.

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

Supreme Court has stated the following:

      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
      the ruling of a 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.

                                      -6-
J-S05030-16



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

omitted). “It 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). Moreover, our scope of review from a suppression ruling is limited to

the evidentiary record that was created at the suppression hearing. In re

L.J., 79 A.3d 1073, 1087 (Pa. 2013).2

       Further, we are aware that Pa.R.Crim.P. 581, which addresses the

suppression of evidence, provides in relevant part as follows:

       (H) The Commonwealth shall have the burden . . . of
       establishing that the challenged evidence was not obtained in
       violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).



____________________________________________


2
  On October 30, 2013, our Supreme Court decided In re L.J., in which the
Court held that our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. L.J., 79
A.3d at 1087. Prior to L.J., this Court routinely held that, when reviewing a
suppression court’s ruling, our scope of review included “the evidence
presented both at the suppression hearing and at trial.” Commonwealth v.
Charleston, 16 A.3d 505, 516 (Pa. Super. 2011) (quoting Commonwealth
v. Chacko, 459 A.2d 311 (Pa. 1983)). L.J. thus narrowed our scope of
review of suppression court rulings to the evidence presented at the
suppression hearing. In this case, Appellant’s suppression hearings were
held after L.J. was decided. Therefore, we will apply the rule announced in
L.J. to the case at bar. See L.J., 79 A.3d at 1089 (stating holding applies to
“all litigation commenced Commonwealth-wide after the filing of this
decision”).



                                           -7-
J-S05030-16


       In Miranda, the Supreme Court set forth safeguards to protect a

person’s rights under the Fifth Amendment to the United States Constitution

which provides that a criminal defendant cannot be compelled to be a

witness or give evidence against himself. Miranda, 384 U.S. at 461. The

Court held police officers are required to inform a suspect prior to

questioning that he has the right to remain silent, that any statement made

may be used against him, and that he has the right to an attorney.

Miranda, 384 U.S. at 444. “The defendant may waive effectuation of these

rights, provided the waiver is made voluntarily, knowingly and intelligently.”

Id.    The Pennsylvania Supreme Court has reiterated that for a waiver of

these rights to be valid, the defendant must be adequately apprised of and

understand his rights and the consequences of waiving those rights, and

must not be threatened, forced, or coerced to waive his rights in any way.

Commonwealth v. DeJesus, 787 A.2d 394, 402 (Pa. 2001).                     “It is the

Commonwealth’s burden to establish whether [the accused] knowingly and

voluntarily    waived   his   Miranda     rights.   In   order   to   do    so,   the

Commonwealth must demonstrate that the proper warnings were given, and

that   the    accused   manifested   an    understanding   of    these   warnings.”

Eichinger, 915 A.2d at 1135-1136.

       In considering whether a defendant has validly waived his Miranda

rights, the trial court engages in a two-pronged analysis:

       (1) whether the waiver was voluntary, in the sense that [the]
       defendant’s choice was not the end result of governmental

                                        -8-
J-S05030-16


     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.

Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006).

     We stated the specific law in Pennsylvania pertaining to the waiver of

Miranda warnings while intoxicated as follows:

                 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 (Pa. Super. 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 (Pa. Super. 1989) (citations
     omitted).

Commonwealth v. Ventura, 975 A.2d 1128, 1137-1138 (Pa. Super. 2009)

(footnote omitted).

     After a thorough review of the certified record, the briefs of the

parties, the applicable law, and the suppression court’s findings of fact and

conclusions of law, we conclude Appellant’s issue merits no relief. It is our

conclusion that the record demonstrates the suppression court did not err in

determining Appellant knowingly, intelligently, and voluntarily waived his

                                    -9-
J-S05030-16


Miranda rights and that the suppression court’s opinion properly disposes of

the issue presented. Suppression Court Findings of Fact and Conclusions of

Law in Disposition of [Appellant’s] Omnibus Pretrial Motion, filed 12/10/14,

at 3-16. Indeed, the record establishes that Appellant “had sufficient mental

capacity at the time of giving his statement to know what he was saying.”

Ventura, 975 A.2d 1128, 1137-1138 (citing Adams, 561 A.2d at 795). We

will not disturb the suppression court’s credibility determinations.   Thus,

Appellant’s claim that he was too impaired to waive his Miranda rights fails.

Accordingly, we adopt the trial court’s reasoning as our own, and affirm on

the basis of its opinion with regard to Appellant’s issue.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




____________________________________________


3
 The parties are directed to attach a copy of the trial court’s opinion filed
December 10, 2014, in the event of further proceedings in this matter.



                                          - 10 -
     ,.
                                                                                        Circulated 03/07/2016 04:07 PM



,.
~         COMMONWEAL TH OF PENNSYLVANIA                                IN THE COURT OF COMMON PLEAS
                                                                       OF BERKS COUNTY, PENNSYLVANIA
                                                               .   .
                              vs.                                      CRIMINAL DIVISION

                   MICHAEL T. WALKER,                                  No.  CP 06 CR 1328-2012
                          Defendant                                    JUDGE THOMAS G. PARISI



                                                                                                                             \
                                             ·ORDER       OF       COURT

                AND NOW, this 9th day of December, 2014, it is ORDERED that the Defendant's                                  I
          Omnibus Pretrial Motion is hereby DENIED.



                                                          BY THE COURT:



                                                          THOMAS G. PARISI,                              J.

       Distribution:
       Clerk of Courts   Original
       Computer          X
       Defendant         X
       Defense Attorney _N_1.. x'gn'--·_ni            _
       District Attorney Glessner
       Adult Probation   X
     · Judge             X




                                                                                                                         .
                                                                                                                         ; I
                                                                                                                         : I
                                                                                                                         ,I
                                                                                                                                 I
                                                                                                                                 !
        COMMONWEAL          TH OF PENNSYLVANIA                     IN THE COURT OF COMMON PLEAS
,...                                                               OF BERKS
                                                                       .    . COUNTY,. PENNSYLVANIA       .

                                 vs.                               CRIMINAL DIVISION

                   MICHAELT. WALKER                                No. CP 06 CR 1328-2012
                        Defendant                                  mDGE THOMAS G. PARISI

        Jay Nigrini, Attorney for Defendant

        Jason Glessner, Attorney for the Commonwealth

               FINDINGS OF FACT AND CONCLUSIONS OFLAW IN DISPOSITION OF
                         DEFENDA~T'S OMNIBUS PRETRIAL MOTION
                             .         .


               Defendant is charged with Murder of the First Degree, Murder of the Second Degree,

        Murder of the Third Degree, Robbery, Burglary, Criminal Trespass, Theft By Unlawful Taking

       or Disposition, Receiving Stolen Property, Possession of Instruments of Crime, Conspiracy to

       Commit Murder of the First Degree, Conspiracy to Commit Murder of the Second Degree,

       Conspiracy to Commit Murder of the Third Degree, Conspiracy to Commit Robbery, Conspiracy

       to Commit Burglary, Conspiracy to Commit Criminal Trespass, Conspiracy to Commit Theft By

       Unlawful Taking or Disposition, and Conspiracy to Commit Receiving Stolen Property.
                                       .                                                 .
               Defendant filed an Omnibus Pretrial Motion on March 27, 2013. Omnibus Pretrial

       Hearings were held on March 4, 2014 and March ·14, 2014. At the end of the March 14, 2014

       hearing, Defense Counsel, Elizabeth M. Ebner, Esquire, requested a continuance to discuss with

       Defendant the possibility of Defendant taking the stand at the pretrial hearing. On May 2, 2014,

       Defense Counsel requested a mental health evaluation for Defendant and requested a .                   . i

       continuance of the pretrial hearing. On July 3, 2014, Defense Counsel filed a Motion to

       Withdraw as Court Appointed Counsel. On July 21, 2014, Attorney Ebner's Motion to With.draw

       was fil<W-~~q;by()tli§:~oUJ;! ,On July 21, 2014, th.is Court appointed Jay Nigrini, Esquire as

       Counsel for Defendant. On October 22, 2013, a final Omnibus Pretrial hearing was held.



                                                         2
 .                   For the reasons set forth below, Defendant's Motion for Suppression of Statements is
l()
('!)
.,
...,....   denied.

                                                  FACTUAL FINDINGS

~                    On December 19, 2011, PennsylvaniaState Police (PSP) Trooper Michael Koslosky was
~
~"
',
(\J
           dispatched to 720 Chestnut Street, in Shoemakersville, Berks County, in response to a suspected
~
           residential burglary. When Trooper Koslosky arrived at the residence, he was met by the

           homeowner, Brian Trump. Mr. Trump told the officer that when he arrived home from work that

           afternoon around 4:00 p.m., his home was in disarray. Mr. Trump estimated that he was missing

           approximately $8,000.00 in cash and two handguns. Other suspicious items were found inside

           the home, including discarded vinyl gloves, a prybar, and blood spatter in the hallway and

           bedroom.

                     Mr. Trump explained to Trooper Koslosky that _his house guest, Stephen Leibensperger,

           had not been located. Mr. Leibensperger had recently relocated and was staying with Mr.

           Trump. Trooper Matthew Brady, a criminal investigator with the PSP Hamburg barracks,

           arrived to provide assistance with Trooper Koslosky's initial investigation. The officers decided

           to canvas the neighborhood. Troopers Brady and Koslosky conducted a more thorough search of

           the residence. Trooper Brady then located a large blood pool in the bedroom. Resting in the

           pool of blood was a black plastic handle from a kitchen knife. Subsequently, Troopers Brady

           and Koslosky located the body of Stephen Leibensperger wrapped in sheets and bedding in the

           attic of Mr. Trump's residenceTrooper Brady officially declared the residence a crime scene.

                     Information from neighbors led investigators to the retrieval of videotape footage from a

           Berks Area Reading Transportation Authority (BARTA) bus depicting the three black males,

           dressed in all black clothing. These individuals were identified as Defendant, Mark Ellis, Sr.,



                                                             3
m.
..
0
.~    and Brian Simpkins. Cameras located on the bus traveling from Reading to Shoemakersville,

      captured images of the suspects during a mid-morning route on December 19, 2011.

      Additionally, police obtained surveillance footage from the Sheetz gas station on

      Shoemakersville Avenue depicting the same three individuals exiting the bus at approximately

      10:30 am on December 19, 2011 and walking on Noble Avenue toward Chestnut Street.

             Brian Trump was interviewed by Trooper Brady and immediately identified Defendant to

      police as a person of interest. Earlier in the day on December 19, Mr, Leibensperger called Mr.

      Trump at work to inform him that Defendant had been calling the house all morning. Trump

      informed Trooper Brady that Defendant had been an intimate friend of his and was upset when

      Mr, Leibensperger.moved in with Mr, Trump a few weeks before. Police showed Mr, Trump the

      images obtained from the BARTA and Sheetz videotapes and he identified Defendant as one of

      the men in the images.

             Defendant was arrested at a Rodeway Inn between the hours of midnight and 2:00 a.m, of

      December 20, 2011. At the time of Defendant's arrest, police seized a black hooded sweatshirt,

      a New York Yankees baseball hat similar to the one depicted in the surveillance video, $1,077 in

      cash and a pair of white long johns that appeared to be stained with blood. Glassine packets with

     . white residue, a glass smoking pipe, and a copper-colored screen were also found by police in

      the hotel room where Defendant was staying.

             After the arrest, Defendant was transported to the police barracks in Hamburg,

      Pennsylvania. Defendant was placed in an interview room with Trooper Wegscheider and

      Trooper Brady. During the interview, Defendant stated that on December 19,2011, Defendant,

      his father Mark Ellis, and step-brother Brandon Simpkins took the Barta Bus from Reading to

      Shoemakersville and then walked to Mr. Trump's residence. Defendant stated that the three.



                                                     4
 "·
~            individuals entered the residence and Defendant then confronted Mr. Leibensperger with a knife .
.......,.
             Defendant admitted to stabbing the victim several times causing the death of Mr. Leibensperger .

            Defendant, Mr. Ellis, and Mr. Simpkins then searched the residence and removed cash and two

            handguns from the residence. During the interview, Defendant expressed that it was his intention

            to kill Mr. Leibensperger and Mr. Brian Trump. Defendant explained that after the incident, the

            men left the residence to take the Barta Bus back to Reading.

                   · On December 20, 2011, Defendant received a screening and health assessment at Berks

            County Jail. Defendant received detoxification treatment for alcohol at the Berks County Jail up

            until December 25, 2011.

                    On December 21, 2011, around 3:00 in the afternoon, Trooper Brady and Trooper

            Wegscheider visited Defendant in Berks County Prison. Trooper Brady provided Defendant with

            the standard Miranda waiver form which Defendant acknowledged and signed. Trooper Brady

            asked Defendant several questions in order to clarify issues relating to Defendant's accomplices

            and the knife found at the crime scene. The Troopers follow-up interview at Berks County

            Prison with Defendant lasted around twenty (20) minutes.

                                                          DISCUSSION

                   Defendant claims that his out-of-court statements should be suppressed because he lacked

            sufficient cognitive awareness to understand: (1) the Miranda warnings given to him by Trooper

            Brady and (2) the choice to •waive his rights
                                                     <
                                                          under Miranda. Defendant believes he lacked the

            sufficient mental capacity to provide a statement to police and that he did not voluntary intend to

            provide such statements to police. Defendant argues the fact that he was found with drugs and

            paraphernalia shortly before his arrest. As a result, he was under the influence of drugs during

            his interview with police thus making his waiver of Miranda rights involuntary.



                                                             5
l(1
                In Commonwealth v. Smith, 291 A.2d 103, 104 (Pa. 1972), the Pennsylvania Supreme
.
('I')

,-
,-
        Court established the following standard when determining an accused's sufficient mental

        capacity at the time of confession:

                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.

        Id at 104.

        "[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. Ventura, 975 A.2d 1128, 1137-1138 (Pa. Super. 2009) quoting

        Commonwealthv: Britcher, 563 A.2d 502, 507 (Pa. 1989).

                In Smith, the evidence presented at Smith's suppression hearing conflicted. Id The two

        detectives who interviewed Smith both testified to the fact that he "appeared to have been

        drinking and was nervous and shaky." Id. However, they both confirmed Smith "was alert and

        responsive, and at no time failed to understand the nature of the interrogation or the questions

        asked of him." Id Defense counsel called defendant's wife, who testified that Smith was

        drinking heavily the night and morning prior to his confession. Id. at 104. Additionally, Smith

        testified that he had several drinks prior to his apprehension by police and that he passed out at

        the police station with no memory of the events that transpired thereafter. Id The Pennsylvania

        Superior Court affirmed the trial court's determination that the detectives' testimony as to the

        defendant's condition and capacity was credible, thereby rejecting the testimony of defendant

        and his wife.



                                                         6
;:.i,;
~~
0)       •
0
                      In Commonwealth v. Streeter, "Streeter testified at the suppression hearing that during the
,..,
             twelve to fifteen hours that preceeded his arrest, he had taken four to five Xana.x tablets, four to

             five Ecstasy tablets, and had smoked an ounce and one-half of marijuana" Commonwealth v.

             Streeter, 2011 Pa. Dist. & Cnty. Dec. LEXIS 115, 2 (Pa. County Ct. 2011),However, the

             interviewing officer "testified that Streeter did not appear to be under the influence of drugs or

             alcohol and that he freely and voluntarily waived his rights and confessed to the commission of

             the crimes." Id. at 3. The court held "his use of the substances was not to such an extent that he

             was impaired so as to prevent him from freely and voluntarily waiving his Miranda rights." Id. at

             7-8. Finding, "the fact that an accused has been drinking does not automatically invalidate his

             subsequent incriminating statements." Id

                     As the fact-finder with respect to Defendant's motion, this Court is required to analyze

             the testimony and use common sense and experience in making a determination as to credibility .

                     After Defendant's arrest, Trooper Michael Wegscheiderplaced       Defendant in custody,

             walked him to the police car, and transported him to the Hamburg police barracks. Trooper

             Wegscheider was asked at the suppression hearing ifhe noticed any signs from Defendant that

             he was under the influence of alcohol and/or drugs at this time. Notes of Testimony [hereinafter

             N.T.], 3/4/14, at 7-8. Trooper Wegscheider stated, "I would say not at all with alcohol to my

             recollection. And as far as illegal drugs, nothing specific that jumps out that would indicate he

             was, you know, manifestly under the influence of any kind of substance in general, no." N.T.,

             3/4/14, at 8.

                     Trooper Wegscheider testified that he was in the interview room with Trooper Brady

             when Trooper Brady read Defendant his Miranda warnings from a standard state police form,

             verbatim. N.T. 3/4/14, at 9. The standard Miranda form was then signed by both Trooper Brady



                                                              7
and Defendant after Trooper Brady further explained the warnings to Defendant. Id; see

Commonwealth's Exhibit No. 1. Trooper Wegsheider testified that the first oral interview with

Defendant lasted about one hour.Id at 18.

        TROOPER WEGSHEIDER: The first Miranda Warnings were provided at
                             approximately 025 5 hours. The next set of Miranda
                             warnings were presented at approximately 0358 hours. So
                             that's from warning to warning, that is about an hour. So
                           · the interview was probably around 50 minutes, 55
                             minutes." Id Trooper Wegscheider testified that the first
                             part of the oral interview with Defendant lasted about fifty
                             (50) to fifty-five (55) minutes.
N.T., 3/4/14, at 18.

        The next set of Miranda warnings, presented to Defendant at approximately 0358 hours,

were also read verbatim from the standard state police custodial written statement form which

Defendant then signed and acknowledged. Id at 11-12; N.T., 3/4/14, at 20; see

Commonwealth's Exhibit No. 3.

        Trooper Brady testified that during the oral interview, he interviewed Defendant while

Trooper Wegscheider took notes. N.T., 3/14/14, at 24. Around 0358, Trooper Brady requested

that Def~ndant write a written statement of what happened at Mr. Trump's residence. Id;

Commonwealth's Exhibit No. 2. Trooper Brady testified that he then read Defendant his·

Miranda rights off a custodial written statement form. At 0403, Trooper Brady asked Defendant

to write a statement of what happened. Commonwealth's Exhibit No. 2. Defendant prepared a

five page written statement, followed by his initials. N.T., 3/4/14, at 20. The written statement

was completed by Defendant on December 20, 2011 and timed at 0523 hours.

       Trooper Wegscheider testified to the following concerning Defendant's demeanor while

Defendant drafted the written statement:




                                                 8
                 A:D.A. GLESSNER:                    Did Mr, Walker - did you or Trooper Brady ever
                                                     question him about, you know, his story and
!!'*'"
                                                     whether or not it was truthful?

                 TROOPER WEGSCHEIDER:               Yes. We questioned him and his answer - his .
                                                    answers in general seem to be lucid. He seemed to
                                                    be coherent during the interview. His answers
                                                    during the interview changed. So in general, there
                                                    were some inconsistent answers, but I believe that
                                                    what [sic] was due tosome deceptiveness early in
                                                    the interview and more credible answers toward the
                                                    end of the interview.
         N.T., 3/4/14, at 14.
                           .                               .                     .
         Trooper Brady was also asked at the pretrial hearing about Defendant's demeanor during the

         interview on December 20, 2011:

                AD.A GLESSNER:                      At some point, based on your training and
                                                    experience, did you notice anything about Mr,
                                                    Walker that indicated to you that he was under the
                                                    influence of controlled substances or alcohol? ·

                TROOPER BRADY:                      No. His appearance and the way he acted was
                                                    consistent with people that I have interviewed in the
                                                    past involved in a homicide. He was a little nervous
                                                    and scared.
         N.T., 3/14/14, at 23.




                AD.A. GLESSNER:                     Okay. And in talking to him for over a course of an
                                                    hour roughly, did you notice anything about his
                                                    mannerisms or his appearance that would make you
                                                    think he was under the influence of any controlled
                                                    substances or alcohol?

                TROOPER BRADY:                      No.

                AD .A. GLESSNER:                    Well specifically, did you smell any alcoholv

                TROOPER BRADY:                      No.




                                                       9
 ..
U1
                   AD.A. GLESSNER:                        And you said, I believe that he was somebody that
...
(;('1
'f"!l'II                                                  he [sic] appeared typical. I think you said that. What
                                                          do you mean typical?

                   TROOPER BRADY: 1                       Consistent with someone who is being interviewed
                                                          in regards to a homicide. They are nervous and a lot
                                                          of times scared of what is going on being in a police
                                                          station for an interview.

           N.T., 3/14/14, at 25-26.



                   TROOPER BRADY:                         The method in which the interview was conducted
                                                          and the way he initially denied, eventually did
                                                          admit to being involved, but limited his
                                                          involvement to then later admitting full involvement
                                                          is consistent with many people that I interviewed in
                                                          the past that was guilty of what they committed.

           N.T., 3/14/14, at 27-28.

           Mr. David Dupree, the forensics unit supervisor, testified to Defendant's demeanor at the time of

           Defendant's fingerprinting and photographing following his arrest in the early morning of                 I
                                                                                                                   : I

           December 20, 2011. The Court asked the witness the following:

                   THE COURT:                            When you were talking to him trying to get
                                                         biographical information, were there any indications
                                                         that would indicate to you that he was sleepy in any
                                                         way?

                   MR.DUPREE:                            No, just the opposite. He was pretty much nonstop
                                                         talking. He did not appear sleepy at all.


           N.T., 3/4/14, at 83-84:

           Additionally, Defense counsel called Lynn Leppo, head of medical. records with theBerks

           County jail System. Mr. Leppo testified to the medical records from the date Mr. Walker arrived

           at the prison until he was released froll?- detox treatment. Mr. Leppo stated.that when a resident

           comes into their facility, the resident is first seen by a medical assistant (MA) and receives a


                                                            10
J.~
11r.
(})

..
C;.
~                                                                       .
¢)     medical screening. N.T., 3/14/14, at 6. Once the screening is finished and the proper forms are
....
       completed, the MA will make a decision on the welfare of the patient and recommend to the

       licensed nurse future treatment for the resident. Id. The Commonwealth asked the following

       questions pertaining to Defendant's screening and daily detox checks with the MA and licensed

       nurse:

                . AD.A. GLESSNER:                     December 21 of201 l talks about daily detox check.
                                                      It just says alcohol, correct?

                 MR.LEPPO:                            yes, it does.

                 AD.A. GLESSNER:                      And that says refused appointment?

                 MR. LEPPO:                           That's correct.

                 A.D.A GLESSNER:                      And I don't know if that has a specific time on it.
                                                      Do you have that there, 14:50 hours maybe?·

                 MR.LEPPO:                            Yes, 14:05.

                A.D.A GLESSNER:                       Okay. And just to go back, if the MA or the nurse
                                                      would have seen something abnormal about Mr.
                                                      Walker's appearance, they would have written that
                                                      down here?

                MR. LEPPO:                            Correct.

       N.T., 3/14/14, at 14-15.

                 On October 22, 2014, Defense Counsel called co-defendant Brandon Simpkins to testify

       to his observations of Defendant not only prior to the incident, but after the incident as well.

       Defense Counsel asked Mr. Simpkins the following questions relating to Defendant's behavior:

                MR. NIGRINI:                          In the time that you had known Mr. Walker prior to
                                                    · December 19, 2011, had you ever seen him under
                                                      the influence of drugs?

                · MR. SIMPKINS:                      No.




                                                        11
O')
C)'

              MR. NlGIUNI:       Had you ever seen him under the influence of
                                 alcohol?

              MR. SIMPKINS:      Yes:

              MR. NlGIUNI:       And to your knowledge, prior to December 19,
                                 2011, did you know whether or not Mr. Walker
                                 took prescription medication?

             MR. SIMPKINS:      No.

      N.T., 10/22/14, at 6-7.



             MR. NIGIUNI:       And did you take a bus to the location where
                                Michael indicated where you could get some
                                money?

             MR. SIMPKINS:      Yes.

             MR. NlGIUNI:       In those 45 minutes, before you got on the bus, did
                                you observe Mr. Walker ingesting or using any
                                drugs, controlled substances?

            · MR. SIMP.KINS:    No.

             MR. NlGIUNI:       Did you observe your father take any drugs or
                                controlled substances?       ·

             MR. SIMPKINS:·     No.

             MR. NIGIUNI:       In the 45 minutes before you got on the bus, did Mr. ·
                                Walker remain, in your words, antsy?

             MR. SIMPKINS:      Yeah.

             MR. NIGlUNI:       And what do you mean by antsy? What did you
                                observe of his behavior that gave you the belief that
                                he was antsy?

             MR. SIMPKINS:      Not able to sit still, pacing, that is about it.




                                   12
.,,....
¢
{11.
0
                  MR. NIGRINI:        At any point while the three of you were on the bus,
                                      did you observe Mr. Walker ingesting any
                                      controlled substances?

                  MR. SIMPKINS:      No.


          N.T., 10/22/14, at 8-9.



                  MR. NIGRINI:       From the time that you guys left the house until you
                                     got onto the bus from this area back to Reading, did
                                     you observe Mr. Walker ingest any drugs or
                                     controlled substances?

                 MR. SIMPKINS:       No.

                 MR. NIGRINI:        During the bus ride from this location back to
                                     Reading, did you observe Mr. Walker ingest any
                                     drugs or controlled substances?

                 MR. SIMPKINS:       No.

                 MR. NIGRINI:        How would you describe Mr. Walker's demeanor
                                     while on the bus back to Reading?

                 MR. SIMPKINS:       He was regular.

                 MR. NIGRINI:        Did he appear to be antsy any longer?

                 MR. SIMPKINS:       A little bit.



                 MR. NIGRINI:        So the three of you went back to your father's
                                     house. From the time that you were dropped off
                                     from the bus in Reading until you got to your
                                     father's house did you observe Mr. Walker ingest
                                     any drugs or controlled substances?

                 MR. SIMPKINS:       No.

          N.T., 10/22/14, at 11-12


                                                                                             : I
                                        13
                                                                                               I!
                                                                                               I
         l\1R NTGRINI:                          At any point until Mr. Walker left your father's
                                                house after he left these jeans and shirt behind, did
                                                you evet see Mr. Walker in possession of any drugs
                                                or controlled substances on this day?

         MR. SIMPKINS:                          No.

 N.T., 10/22/14, at 13.

         Defense Counsel also called Defendant to testify to his behavior on December 19th and

 20th of 2011. Defendant went on to explain that back in December of 2011, he had been taking

 prescribed medication for bipolar disorder, paranoid schizophrenia, and psychotic mood swings.

 N.T., 10/22/14, at 16. Defendant explained how he had to continuously check himself in at the

 hospital to get prescriptions because any money he received he would spend on crack cocaine.

 Id at 17. In 2011, Defendant said he was specifically prescribed Ritalin, Klonopin, Depakote,

 and Zoloft. Id. When Defendant was asked how many pills he took on the morning of December

 19, 2011, Defendant stated, "All I just remember is that I just-I popped 20 [pills]. I crushed it

· up, and sniffed it into my nose." Id Defendant went on to explain that he then went to co-

 defendant Mark Ellis's house and began banging on the door. Id. at 18. Defendant testified that

 co-defendant Ellis gave him $70 worth of crack cocaine to calm him down and he smoked the

 entire amount at the house. Id: Defendant said that after smoking the crack cocaine, he just

 "zoned out." Id at 19. Defendant explained that when he smokes crack cocaine on top of taking

 his prescription medication, he zones outto the point where he looks like a zombie. Id. From

 there, Defendant testified, that he does not remember anything after that point.

        Defendant believes his o~t of court statements provided on December 20, 2011 should be

 suppressed as his statement was incoherent and under the influence of drugs to the point that his·

 mental capacity rendered his waiver of Miranda involuntary.




                                                  14
                 The test for determining voluntariness is whether Defendant 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.' Commonwealth v. Smith, 291 A.2d I 03, 104 ( 1972). See also Commonwealth

       v. Davenport, 295 A2d 596 (1972). ''As with the consumption of alcohol, drug intake does not

       automatically invalidate an incriminatory statement." Commonwealth v. Cornish, 370 A.2d 291,

       297 (Pa. 1977). The officers' testimony at the pretrial hearing clearly establishes that

       Defendant's will was not impaired by. alleged drug or alcohol intake at the time of questioning.        t:
                                 .                                             .         .

       The record further shows Defendant was alert and responsive at the time of the intervi~w.

       Looking at the testimony provided at the pretrial hearings, there was no sign that Defendant

       suffered from any kind of physical discomfort at the time of the interview with the officers. After

       explaining the waiver of Miranda to Defendant, Defendant        did riot make   any objection nor did

       he notify the officers that he failed to understand the nature of the interrogation.

                 Defendant offered the testimony of co-defendant Simpkins at the pretrial hearing. Mr.

       Simpkins testified consistently that he did not observe the Defendant ingesting any drugs and/or

       alcohol prior to or after the death of Mr. Leibensperger. Furthermore, Lynn Leppo and David ·

       Dupree testified to Defendant's demeanor on the day of his arrest and the days following. Mr.

       Leppo stated that the license nurse and medical assistant that medically treated Defendant after
             .                                                   .
       his arrest made no notation of his supposed intoxication. Mr. Dupree stated that Defendant was

       alert and talkative at the time his fingerprints were taken, but saw no sign of drowsiness on

       behalf of the Defendant. Defendant testified that he had no recollection· of any of the events at

       the time of his arrest or the events leading up to his arrest due to his mental disorders and abuse

       of pills and crack cocaine on the day of the alleged killing.




                                                         15
..
Iii            After review of the record, this court finds credible the officers' testimony as to
..
(\')



        Defendant's condition and capacity at the time of giving his statement and not that of Defendant.

        Trooper Brady also confirmed at the pretrial that Defendant's change in stories during the

       . interview was a common experience of his when interviewing homicide suspects. Defendant was

       also read his Miranda warnings an hour apart from each other prior to providing his written

       statement to the officers. Trooper Brady read the warnings verbatim to Defendant and testified

       that he further explained the rights available to Defendant prior to the oral interview and written

       statement. At no point in time did Defendant state his lack of understanding of the warnings.

       Additionally, the officers' testimony confirming mental awareness is further supported by three

       other witnesses who testified at the pretrial hearing. The amount of witness testimony

       supporting Defendant's cognitive awareness on the day of his arrest and interview does outweigh

       the inconsistent testimony provided only by Defendant. For these reasons, Defendant is found to

       have sufficient mental capacity at the time of giving his statement.

              WHEREFORE, for these reasons, Defendant's Omnibus Pretrial Motion is hereby

       DENIED.




                                                       16
