J-S40040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
              v.                            :
                                            :
TRAVIS HILL,                                :
                                            :
                    Appellant               :            No. 2612 EDA 2015

              Appeal from the Judgment of Sentence July 29, 2015
               in the Court of Common Pleas of Delaware County,
               Criminal Division, No(s): CP-23-CR-0005508-2013


BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                              FILED JUNE 28, 2016

        Travis Hill (“Hill”) appeals the judgment of sentence imposed following

his conviction of two counts of robbery (threaten immediate serious bodily

injury).1 We affirm.

        In its Opinion, the trial court set forth the relevant factual and

procedural background, which we adopt for the purpose of this appeal. See

Trial Court Opinion, 11/20/15, at 1-7, 8-17.

        On appeal, Hill raises the following questions for our review:

        1. Whether the lower court erred in refusing to suppress the
           statement that [] Hill allegedly supplied to police[,] since it
           was the fruit of a seizure conducted without legal justification
           and in violation of his state and federal constitutional rights?

        2. Whether the lower court erred in refusing to suppress the
           statement that [] Hill allegedly supplied to police[,] since it
           was the product of improper inducement, and therefore, not
           knowingly, intelligently, or voluntarily made?

1
    See 18 Pa.C.S.A. § 3701.
J-S40040-16



Brief for Appellant at 5.

      In his first issue, Hill contends that the trial court erred by finding that

the warrantless arrest of Hill was lawful, and carried out in accordance with

the Pennsylvania and United States Constitutions.       Id. at 14.    Hill asserts

that he was the subject of a custodial arrest that lacked probable cause. Id.

at 15. Hill claims that the police stopped the vehicle he was traveling in by

activating their emergency lights, and thereafter approached the vehicle with

their guns drawn, removed Hill from the vehicle, stepped on his head or

neck, handcuffed him, and transported him to the police station. Id. at 16.

Hill argues that, under these circumstances, a reasonable person would

believe that he was under total police control, and that the police intended to

take him into custody.       Id.    Hill contends that “parole agents were

apparently not in communication with police at the time of arrest, and did

not ask police to arrest Hill for parole violations.” Id. at 18-19. Hill asserts

that there were no exigent circumstances to justify his warrantless arrest by

police before parole officers could arrive because there was no evidence that

Hill had fled on previous occasions, or that he would present any difficulty in

being detained.    Id. at 18.   Hill claims that, despite the fact that parole

agents may have intended to arrest him for technical violations of his parole,

his arrest by police was nevertheless illegal.     Id. at 19.   Hill argues that

police officers do not enjoy the same authority as parole agents, who may

conduct a warrantless search of a parolee’s home with only a reasonable


                                   -2-
J-S40040-16


suspicion. Id. Hill contends that, because the police who arrested him were

not assisting parole officers, they were performing parole officer duties

without lawful authority, and in the absence of exigent circumstances. Id.

Hill asserts that the police used his alleged parole violations as an

illegitimate pretext to circumvent the inconvenience of obtaining a warrant.

Id. Hill claims that the statement he allegedly gave to police, shortly after

he was taken into custody, was the result of an illegal warrantless arrest,

and should have been suppressed as fruit of the poisonous tree. Id. at 20.

        The trial court set forth the relevant law, addressed Hill’s first issue,

and concluded that it lacks merit. See Trial Court Opinion, 11/20/15, at 17-

21. We agree with the sound reasoning of the trial court, which is supported

by the record, and affirm on this basis as to Hill’s first issue. See id.

        In his second issue, Hill contends that his statement to police was not

knowingly, voluntarily or intelligently made because police coerced him, and

induced him to speak with promises of leniency. Brief for Appellant at 21.

Hill asserts that, after he was arrested, police “allegedly threatened to

attempt to have his fiancé evicted from her home.” Id. at 23. Hill claims

that he was thereafter processed and handcuffed to a wall at the police

station. Id. Hill argues that he did not wish to speak to police, and that he

waived his Miranda2 rights under duress.         Id.   Hill contends that police

warned him that he faced mandatory or enhanced penalties, and that he


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


                                    -3-
J-S40040-16


could “save himself or limit his exposure by cooperating.” Id. Hill asserts

that the police threatened him that his failure to cooperate would result in

maximum penalties. Id. at 24. Hill claims that the police then shackled him

in leg irons to gain a psychological advantage and to compel Hill to

incriminate himself. Id. Hill points out that, shortly thereafter, he admitted

his involvement in the robberies. Id. Hill contends that his confession was

unlawfully obtained through “police trickery,” and should have been

suppressed. Id. at 25.

      The trial court set forth the relevant law, addressed Hill’s second issue,

and concluded that it lacks merit. See Trial Court Opinion, 11/20/15, at 22-

28. We agree with the sound reasoning of the trial court, which is supported

by the record, and affirm on this basis as to Hill’s second issue. See id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2016




                                  -4-
                                                                                                            .           I,
                                                                                                 Circulated 05/25/2016 03:05 PM
                                                                                                 5 l/002/()-//p !

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYL V
                           CRIMINAL

COMMONWEALTHOFPENNSYLVANJA                                                         NO. 5508-13

                        v.

TRAVIS SHAWN HILL


John F.X. Reilly, Esquire - Deputy D~Jr.ict Attorney for the Commonwealth
Steven M. Papi, Esquire -Attorney for Travis Hill- .


                                                              OPINION

Kelly, J.                        .                              .                        D~re: November 20, 201i i
          A criminal complaint was filed on or about July
                                                      •..
                                                          25, 2013, by Trooper Robert S. Kii.
                                          .,,;,., ,. ., -:·
                                                                                                                             J,
                                                                                                                              I
                                                                                                                              I
                                                                        v,   .··                                              •

Pennsylvania State Police, charging Travis Hill (hereinafter referred to as "Defendant" o! .

"Hill"), inter alia, with Robbery (two (2).counts).1                                                                          I
                                                                                                                              I


          A preliminary h~aring was held on August 29, 2013, before the Magisterial Dis    ·dt
Court.     After the Commonwealth's presentation oi e~dence, the presiding Magisterial n· . Ji
                    .                                                                        I
                                        ,--;..:::::;·:'""'

Judge held the Defendant for ..trial court purposes as to, inter alia, Robbery (two (2) counts).2

          Defendant Hill was formally arraigned before the trial court on September 25: .2013,

which time the Office of the Delaware County District Attorney lodged against him a
                                                                                                                     t
                                                                                                                cmmha1
                                                                                                                              •
                                                                                                                              i


Information averring, inter alia, the fu~~                          Count 1 - Robbery (Threaten Immediate Seri          q
Bodily Injury);3 and Count 2 - Robbery (Threaten Immediate Serious Bodily Injury).4                                 .         I



1
    18 Pa.C.S. §3701.
2
  Id.
3 Id.
4
    Id.
                                                                                                                ! .




          On January 15, 2014, defensg.counsef                filed a Motion for Suppression of          Evidl e
seeking to exclude from the prosecution's trial usage the Defendant's statement to Pennsylv

State Police investigators. See Motion for Suppression of Evidence.

          The Defendant's attorney lodged on July 14, 2014, 6 an Amended Motion for Suppres io

of Evidence expanding the past          filed~~-defense   exclusionary claim to include various item



                                                                                                                li
                                                               "
physical evidence seized by Pennsylvania state troopers pursuant to a search warrant's execu ·                   01.
See Amended Motion for Suppression of Evidence.                                               .

          On August 5, 2014, a hearing salient to Defendant Hill's suppression motions took p

                                                                                                                 l'e
                                                                                                                      l
before this court.      N.T. 8/5/14. · A\ ..~-(:} conclus~on of the hearing, the court instructed

attorneys to forward to its chambers legal memorandums in further support of their argumen '

          On September 4, 2014, the Commonwealth lodged a Motion to Re-Open Suppres io

Record. See Commonwealth's Motion to Re-Open Suppression Record.

          The Defendant's counsel on September 5, 2014, submitted to the court a Memorandu · of

Law in Support of the Suppressio;~~tion.                      Se~ Memorandum of Law in Support ol                J
Suppression Motion.

          On September 10, 2014, the prosecution forwarded to the court its Memorandum                      'rt
in Opposition to the Defense's Exclusionary Pleadings. See Commonwealth's Memorand                            J
Law.

          On October 2, 2014,           a hearing took place            before this court concerning             thf

Commonwealth's Motion to Re-Open Suppression Record.                               N.T. 10/7114.         See     lsr
5
    On January 14, 2014, Clinton L. Johnson, Esquire, entered his appearance in the above captioned matter. See
Entry of Appearance.                                                                                                  I
6
  Between the original suppression motion's filing and th:·lodging of the amended exc~sionary pleadin . th~
above-captioned matter was assigned t.o two (2) other junsts before age compulsory retirement and a sua        4lontr
recusal finally necessitated the case's reassignment to this court. The proceeding's at bar were further delayed y at
least seven (1) defense continuance applications.                                                                     I
                                                          2
                                                                                                              I I

Commonwealth's Motion to Re-Open Suppression Record. At this listing, the court grante ·

prosecution's motion and permitted the Commonwealth to re-open the suppression record.

10/2114.7

          Per an order dated October 21, 2014, the court denied the Defendant's Motio fr

Suppression of Evidence and Amended Motion for Suppression of Evidence. See Order a]d

October 21, 2014.

          A jury trial commenced before this court on June 8, 2015,8 continued over the nexf                        o

(2) days and concluded on June 10, ~15. N.T. 6;8/15. N.T. 6/9/15. N.T. 6/10/15. As                         to~+
prosecu~d offenses,.Count 1 - Robbery (Threaten Immediate Serious Bodily Jnjury)9 and q>,t

2 - Robbery (Threaten Immediate Serious Bodily Injury),10 the jury found Defendant Hill                     g-Jnt}.
N.T. 6/10/15, pp. 211-214. See also Verdict..,;.r.-r""'_,,,,..




          On June 15, 2015, the Commonwealth lodged its Notice of Intention to

Imposition of a Mandatory Minimum Sentence Pursuant to 42 Pa.C.S. § 9714.                                       S

Commonwealth's Notice.



court found after the presentation of such relevant evidence that the prosecution had su:ffi.cfontlr

proven the applicability of the Sentences for Second and Subsequent Offenses' mand                             br:v
minimum provisions'! and sentenced the Defendant to the following:


7
 On October 3, 2014, the court entered,.,,~ order further memorializing its past decision' to gran th
Commonwealth's Motion to Re-Open Suppression Record. See Order dated October 3, 2014.                               1
BFrom the exclusionary pleadings being decided through the beginning of trial, there were multiple court listin s a 1
of which were continued, unopposed, by either the defense or prosecution for various reasons, includ\J.g o oin
plea negotiations, witness unavailability and/or the need to explore possible expert testirh?ny.      !
9
    18 Pa.C.S. §3701
 io Id.
 1142Pa.C.S.
               §9714.
                                                                 3
                                                                                                                       I I
                                                                                                                       I




(Threaten Immediate Serious Bodily Injury)12                        -     a period of ten (10) to twenty (20) y ar
                                          , __._te'



incarceration at a state correctional facility; and Count 2 Robbery (Threaten Immediate Sejou

Bodily Injury)13 - a ten (10) to twenty (20) year term of imprisonment at a state penalfacilit                             t,

run consecutively to that of Count 1 (Robbery).14                                 The Defendant was deemed ineligible fo

recidivism risk reduction incentive, 61 fa.C.S. §§4501 et seq. The Defendant was given th
                                        . ,,.~ __,..... .
                                                                        :<:"r·.


applicable time served credit. See Certificate of Imposition of Judgment of Sentence. See · ls.

N.T. 7/29/15.




the Defendant entitled, "Post-Senten~:~ ..Motion/Appeal" on August 11, 2015. See Defend                                    t'[
Post-Sentence Motion/Appeal, dated August 3, 2015.                                   This two (2) page letter set forth th

following claims:" ... [T]he guilty verdict does not reflect the Commonwealths [sic] eviden e;' .



denial of the Defendant's     exclusionary challenges; and The sentence the court imposed

unfair and illegal. See Defendant' s,,,Pro Se Post-Sentence Motion/ Appeal. The envelop i                                       J




which the court received this prose       document was postmarked August 6, 2015, and noted

return address the George W.    Hill Correctional                  Facility (Delaware County Prison).

          Knowing that Defendant Hill was still represented of-record by trial counsel, Clinto
                                                            -vr-

Johnson, Esquire, and recognizing th;t'.the ten (lO)'day period for the otherwise timely filing o

post-sentence motions bad expired, this court immediately listed the above-captioned matteJ fo

the next day, August 12, 2015. See Pa.R.Crim.P. 720(,A:.)(l), 15


12
     18 Pa.C.S. §3701.
13
   Id.
t4 Id.

15
   This court readily recognized 1hat on its face the post-sentence motion of the Defendant's was untimel .
Pa.R.Crim.P. 720(A)(l). This court was also aware that the "prisoner mailbox role" provides that an inm te'
                                                                   4
         At this listing of August 12, 2015, the court made known to both the Commonwe

and Defendant's lawyers its receipt of the Defendant's prose post-sentence motion, directed th t

this self-representedpleading be made part ofthe case record, and provided copies of the same                             Q


counsel. See Pa.R.~.P.                576(A)(4). While !ecognizing Defendant ~                         via his    prt     e

document took issue with his trial attorney's stewardship," the court in the interests

preserving the Defendant's ability to pursue on direct ~ppeal certain appellate comp!,,

rebuffed Mr. Johnson's efforts to step aside suggesting that an of-record petition to withdrlw




pleading"   ... shall be deemed to be filed on the date he delivers [such a document] to prison authorities a d/~r
places his [filing] in the institutional mailbox······ Smith v. Board·.·of
                                                                        · Probation and Parole, 546 Pa. 115, 122, 6831'.2· d
278, 281 (1996). See also Commonwealth v. Caster, 766 A.2d 1283, 1285-87 (Pa.Super. 2001) iti1g
Commonwealth v. Little, 716 A.2d 1287, 1288-89 (Pa.Super, 1998) and Commonwealth v. Jerman, 162 A.2d 36 ,
368 (Pa.Super. 1998).
                                               ,...,.._C::'.'_._.•I• ·~



  This court relatedly realized that a defendant may proceed pro se or can enjoy the benefit of an attorney s
stewardship; however, a "hybrid representation" of a pro se litigation contemporaneous with a lawyer's of-reco
representation is prohibited. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007)'. See a o
Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993). Flowing from this ''hybrid representation' prohib tio
a defendant's pro se lodging when represented of-record by counsel is a legal. nullity which a court c nn·t
adjudicate: Commonwealth v. Nischan supra:

  At bar, Mr. Johnson had neither sought nor had this court granted him. leave to wi1hdrawal his represen~~on
appearance prior to the Defendant lodging his p,;p se post-sentence motion. See Pa.RCrim.P. 120. The "prison
mailbox rule" being applicable to only self-represented inmate litigants and Defendant Hill then being repres~ntf
of-record by counsel when he forwarded his pro se post-sentence motion to the court in contravention of the ''hybrJ'd
representation" prohibitlon, the Defendant's "timely" pro se post-sentence motion seemingly enjoys no lteg 1
viability.                                                     '                                                      I
16
   The rupture of a proper attorney-client relationship between Mr. Johnson and Defendant Hill became diiectl~
obvious to this court at sentencing on the Defendant exercising his right of allocution and then, in part, questidnin
trial counsel's stewardship. N.T. 7/29/15, pp. 20-28. The disintegration of needed communications betwee1 t~
Defendant and Mr. Johnson is further reflected by the pro se post-sentence motion claiming trial counsel w s
incompetent. See Defendant's Pro Se Post-Sentence Motion/Appeal.
                                                   ·~·,,;a•:,"




  This untenable situation was further acerbated by the Defendant being quickly transferred from the George W ·
Correctional Facility (Delaware County Prison) to the Graterford state correctional institution immedi tel
subsequent to sentencing imposition.

  For these compelling reasons, the court has opted to view as may be salient to such considerations counsel's os
sentencing motions as including an application for leave to proceed nunc pro tune and relatedly granted the s
See Order dated August 13, 2014.
                                                                          5
                                                                                                           I I
~uld be lodged subsequentto counsel's filing post-sentencemotions and contemporanlJ

with a notice of appeal's lodging, assuming the post~sentencemotions' denial."

       The court via an order of August 13, 2014, granted Defendant Hill's lawyer leavt t,

proceed with his then just lodged post-sentence motions nunc pro tune while urging that an

appeal notice be :filed no later than thirty (30) days subsequent to the imposition of sentence,            uli
29, 2015. See Order dated August }},,,2014, Fns. ~-4. See also Defendant's Post-Sent ncl

Motions dated August 13, 2014. This same order (August 13, 2014) also denied def                             sl
counsel's post-sentence motions.

        The Defendant's trial lawyer on August 17, 2015, lodged a Motion to Withdra

Counsel. See Motion to Withdraw as CoJU1Sel.

        On August 26, 2015, the court permitted Mr. Johnson to step aside as Defendant

attorney. See Order dated August 26, 2015.

        A Notice' of Appeal was-timely lodged on August 27, 2015, by the Defendant thro g

counsel. See Notice of Appeal. See also Superior Court No. 2612 EDA 2015.
                                           ,~   . :-· ..

        By correspondence on that same date (August 27, 2015), this court requested that Pat ic

J. Connors, Esquire, of the Delaware County Public Defender's Office determine whe e

Defendant Hill was eligible for its professional services. See Letter dated August 27, 2015.



17
  See Pa.R..Crim.P. 607(a)(1)(2)(3) and Comment to Pa.R.Crim.P. 607; Commonwealth v. Lofton, 57 A.3d li27
1273 (Pa.Super. 2012) ("[A] weight of the evidence claim must be preserved either in a post-sentence motion, ~y
written motion before sentencing, or orally prior to sentencing.") citing PaR.C.rim.P, 607 and Commonwealth J
Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011); and Commonwealth v. Bryant, 57 A.3d 191, 197.(Pa.Super. 201a2)i.
See also Commonwealth v. Felder, 75 A.3d 513, 515 (Pa.Super. 2013) C'Challenges to the discretionary aspects~of
sentence must be raised first in the trial court, either in a post-sentence motion or by presenting them durin th
sentencing proceeding ... The failure to do so results in ·a waiver of all such claims.") citing Commonweaih ~
Rhoades, 8 A.3d 912, 915 (Pa.Super. 2010); Commonwealthv. Kittrell, 19 A.3d 532, 538 (Pa.Super. 2011) qu ting
Commonwealth v. MoAfee, 849 A.2d 270, 275 (Pa.Super, 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2 04)1f
and Commonwealthv. Watson, 835 A.2d 786, 791 (Pa.Super. 2003) quoting Commonwealth v. Mann, 820 A2d 88
794 (Pa.Super. 2003).
                                                           6
       On September 1, 2015, Mr. Connors entered his appearance in the above-captiinld

matter for purposes of the Defendant's presentappeal. See Entry of Appearance.

       This court instructed the Defendant's counsel per such an order of September 10, ~O 5, to

file a Statement of Matters Complained ?f on Appeal. See Order dated September 10, 2015.

       On September 28, 2015, Defendant Hill's lawyer lodged a Petition for Extension

Time to File Statement of Matters Complained of on Appeal. See Petition for Extensijn

Time. Via an order of this same date (September 28, 2015), the court granted the exte siol

application and directed counsel to lodge a statement of appellate complaints no later tha
                                          .~.,,.;..,



October 22, 2015. See Order dated September28, 2015.

       Responding to this court's order (September 28, 2015), the Defendant's attorney lodge

on October 19, 2015, a statement of matters complained asserting the three (3) below disc sebI
assignments of error.

                                                       I. Discussion

       Defendant Hil!>s advanced complaints on appeal all challenge this court's preri 1

exclusionary rulings, See Statement of Matters Complained. See also Order dated Octob12 ,

2014. The appellate review standard regarding a trial court's denial of a suppression cl ·       i
                                     ,,;;,,;:."'":

well-settled and as described by the Superior Court below:

               [Wjhen an appellate court reviews the ruling of a suppression
               court, we consider only the evidence from the defendant's
               witnesses together with the evidence of the prosecution that, when
               read in the context of the entire record, remains uncontradicted.
               We must first ascertain whether the record supports the factual
               findings of the suppression court, and then determine the
               reasonablene.ss of the" inferences and legal conclusions drawn
               therefrom. The suppression court's factual findings are binding on
               us and we may reverse only if the legal conclusions drawn
               therefrom are erroneous.


                                                             7
                                        ,....,.~.•·
Commonwealth v. Conrad, 892 A.2d 826, 828 (Pa.Super. 2006) quoting Commonwea th
Rosas, 875 A.2d 341, 346 (Pa.Super. 2005). See also Commonwealth v. El, 933 A.24 65 1, 6

                                                                                                  81
                                                                                                    1
(Pa.Super. 2007) quoting Commonwealth v. Nobalez, 805 A.2d 598, 600 (Pa.Super, 002h,          4
appeal denied, 575 Pa. 692, 835 A.2d 709 (2003); Commonwealth v. Cook, 865 A.2d 869i,
(Pa.Super. 2004) citing Commonwealth v. Ayala, 791 A.2d 1202, 1207 (Pa.Super. 2002) biti
Commonwealth v. Turner, 772 A.2d 970, 972-73 (Pa.Super. 2001) (en banc);I
Commonwealth 'V. Ryerson, 817 A.2d 510, 513-14 (Pa.Super, 2003) quoting Commonwedtn .
Johnson, 734 A.2d 864, 869 (Pa.Super. 1999). .                          .

         Salient to the Defendant> s appellate complaints, the following is a factual summary . f

suppression hearings' evidentiary presentations. N.T. 8i5/14 and N.T. 10/2114.

         In June of 2013, Agent Dage Gardner of the Pennsylvania Board of Probation and Prl[

was assigned. supervisory responsibility       of Defendant    Hill's   parole stemming fro         eethr

Defendant's previous robbery conviction.       N.T. 10/2/14, p. 9. Defendant Hill had past             h
provided and signed an Order to Release on Parole detailing the conditions of his parole.
                                                                                                        I
10/2114, pp. 10-12. See also Commonwealth Exhibit CS-11 - Order to Release on Parole. Th
                                                                                                     -i·
Defendant's       approved   address   during his parole   oversight    was 6565 Windsor      S ee ,,

Philadelphia, Pennsyl~ania.       N.T. 10/2/14, p. 9.      Defendant Hill was required to olta·,

permission from Agent Gardner bef,'!!• he      was permitted for any reason to leave Philadjnbi
County.    N.T. 10/2/14, pp. 11-12.       Agent Gardner for the sole and limited purpose      oI hil
employment had previously given Defendant Hill approval to leave Philadelphia County.             L.J
10/2114, p. 23.

         Throughout the course of Age~t Gardner's supervision of him, the Defendant so gh

permission to visit his children in Kennett Square, Chester County, Pennsylvania. N.T. 10/2/14

p. 13.    The address for his children that Defendant Hill prov;ded Agent Gardner was 1131

Market Street Kennett Square, Pennsylvania. Agent Gardner on at least one occasion visited thi

residence (1311 Market Street Kennett Square, Pennsylvania) and found an unrelated f

occupying the home. N.T. 10/2/14, pp. 14-15.
                                                   8
                                        ·'<'-""''

           In July of 2013, Agent Gardner was contacted by Trooper John Sutherland

Pennsylvania State Police informing him that Defendant Hill was a suspect in two (2) rob eri · s.
                                                                                                          t   t e



that had taken place in Delaware County and Lancaster County. N.T. 10/2/14, p. 15. Res ting

from this conversation with Trooper. Sutherland, Agent Gardner arranged for a July 9, 01~,

meeting with Defendant Hill. N.T .. 10/2/14, p. 15. This meeting took place at the Defendant s

approved residence, 6565 Windsor Street, Philadelphia, Pennsylvania. N.T. 10/2/14, pp. 15 16.

           Defendant Hill at the time of his supervision was in possession of a blue Nissan                   hnr.
                                                                                                              ~r
                                                                                                          ·

N.T. 10/2/14, p. 16. On arriving at~~. scheduled me~ting on July 9, 2013, the Defen,

the passenger in a gray Dodge Avenger owned by his girlfriend, who was driving the                            o~r

vehicle.     N.T. 10/2/14, pp. 16~17.       The Defendant had past informed Agent Gardner tb.                     ,s

girlfriend lived at the 1311 Market Street address, the same residence Defendant Hill had s ugr

permission to visit his children and which the agent previously confirmed was occupied ty an

unrelated family. N.T. I0/2114, p:"'18.                     Agent.Gardner   made it known in   discussionsl.wil
Defendant Hill that he was aware the Defendant was not residing at his approved Philadelp,a



not to live outside the city of Philadelphia. N. T. 10/2/14, p. 20. Agent Gardner also wrote , o

the Avenger's license plate and afterconducting                   a ~otor vehicle record inquiry found tht             e



Pennsylvania. N.T. 10/2/14, p. 18.                      .                                             .

           On July 12, 2013, after learning the address at which the girlfriend's automobil                   w s

registered, Agent Gardner went to 3()1.Cedar Woo.d Circle'. and located the gray Dodge Av+ge .

N.T. 10/2/14, p. 21. Agent Gardner also found Defendant Hill's blue Nissan Maxima                             k
apartment complex located inthe immediate vi:nity. This was the same motor vehicle.,                                   le



                                          ..• ·"!'"""
                                                                                                    l I

Defendant had told him at their most recent past meeting (July 9, 2013) was being repaired. N.

10/2114, pp. 17"18, 21. Due to Age~t-Gardner visiting 301 Cedar Wood Circle during t e                  lJ e
evening hours, he was unable to procure needed help in then detaining the Defendant :6, r his

parole violations. N.T. 10/2/14, p. 24. In subseq~ent discussions with the state police, ·4I ge. t

Gardner related to investigating troopers the results of his motor vehicle inquiry regarruJg                  e



Cedar Wood Circle. N.T. 8/5/14, pp:-37-38.

           During this same time period, Pennsylvania State Trooper Kirby was derail d                    !°
investigate a robbery that took place in Concord Township, Delaware County. N.T. 8/5/+ p .

30-31. At the time he was assigned to the case, the Defendant was already a suspect steI'                     g

from a similar robbery in Lancaster-County where the perpetrator's description matched at , f

Defendant Hill, as well as the assailant's license plate, recorded by a security officer, ma ch d

the motor vehicle owned by Defendant Hill, the blue Nissan Maxima. N.T. 8/5/14, p. 31.

            Following the identification of the Defendant as a suspect in the robbery, his ce lul

telephone records were sought and obtained through a past search warrant 18 N.T. 8/5/14,            j' 3 .
This telephone data used in conjunction with cellular phone towers' locations showed                l         e

Defendant's cellular telephone and by reasoned extension Defendant Hill wasin close prox                  ·

to both the Delaware County and Lancaster County robbery locations at the time of the

occurrence. N.T. 8/5/14, pp. 32-3} -The cellular phone information also revealed th.a

Defendant was recently in Chester County, Pennsylvania, Maryland and Delaware. N.T. 8/, /14,

pp. 36-37. Agent Gardner was made aware the Defendant's cellular telephone records evide                 l
 18
      This phone record search warrant was not'~:i'bar the subject of any exclusionary challenge.
                                                             10
Defendant Hill, absent the agent's approval, had been outside the board's Philadelphia distric

left Pennsylvania, and was not residing at his designated home. N. T. 10/2/14, pp. 24-27.

       As part of his investigative activities, Trooper Kirby and other members

Pennsylvania State Police Avondale barracks conducted surveillance of the address at 301 C d

Wood Circle. N.T. 8/5/14, p. 39. ~~--smveying the area around the home, Trooper Kirby an

separately, the Pennsylvania State Police Avondale troopers observed the Defendant's           lu
                                                                                                      I
Nissan Maxima in an apartment complex immediately adjacent to the residence, 301 C

Wood Circle. N.T. 8/5/14, pp. 39-40.

       On July 24, 2013, Trooper Kirby applied for a search warrant regarding the reside          e

301 Cedar Wood Circle Kennett Square, Pennsylvania, to a Chester County Magisterial Dis ric

Judge. N.T. 8/5/14, pp. 38, 40-41. On this same date (July 24, 2013), the reviewing roagisia

approved the search warrant.    N.T. 8/5/14, p. 42. See Commonwealth Exhibit CS-1 - Searc

Warrant No.1YID 87-13 issued July 24, 2013.                                                   1
        As of July 25, 2013, and previous to the Defendant being taken into custody A en

Gardner had secured board a~orization to detain and commit Defendant Hill           N.T.    10414
pp. 30-32. See also Commonwealth Exhibit CS-2 - Commit and Detain Warrant Agent Gar<lne

had also prior to the Defendant's apprehension informed Trooper Krrby that regardless of      jha
investigating troopers found during the-search of the 301 Cedar Wood Circle home he woull j
detaining the Defendant for his parole violations. ("Despite what was going on I was goinj to

.;        :asb::~~:.::::·p:t::~T~:::,::::::1~::::                               ::::.~1
requested that the troopers take the .Defendant into custody, if in the course of the searc

warrant's execution such an opportunity arose. N.T. 10/2/14, pp. 29-31, 39.

                                                11
       During the early morning::.           of July~. 2012, Troopers Kirb; and Richjon

anticipation of the search warrant being executed shortly thereafter were conducting surveillan e

of the home, 301 Cedar Wood Circle, and otherwise making related preparations. N.T. 8[5/1 ,

pp. 42-44.   With their noticing the brake lights being activated on the Dodge Avenger                 f

Defendant Hill's girlfriend, the tro~;::s became -aware that two (2). individuals were   hlsiJe
motor vehicle. N.T. 8/5/14, p. 44.

       Once the Avenger left the residence, Troopers Kirby and Richardson conducted a rot              r

vehicle stop. N.T. 8/5/14, pp. 44-4:_:.-~t    the t~e of the stop, Trooper Richardson was   J          ll

uniform while Trooper IGrby was in plainclothes ~th his badge was displayed. N.T. 8/5l4,                .

45.   At the time he was taken into custody, the troopers were certainly aware ~                       ·e

Defendant's criminal record consisted of a violent crime and the subjects of Trooper Khb

current investigation were two (2) armed robberies. N.T. 8/5/14, pp. 49-51.

        On approaching the automobile, the troopers observed the Defendant was situated

passenger seat. N.T. 8/5/14, p. 47. As Trooper Richardson removed Defendant Hill fro

motor vehicle a struggle ensued. N.T. 8/5/14, p. 48.           This confrontation resulted] h n

Defendant Hill ignored Trooper Ric~dson's instructions directing the Defendant to the       j _ Id
in order to place him into custody.     N.T. . 8/5/14, p.. 48. While the Defendant continued o

disregard Trooper Richardson's repeated directions that he remain on the ground prone wi                s

hands behind the back, Trooper Kirby placed his foot on Defendant Hill's head and/or necl ar a

and began pushing toward the ground. N.T. 8/5/14, p. 48. This scuffle took place on a . as y

area next to the roadway as oppos~cf to the pavement where the car had been stopped. N. .

8/5/14, p. 90.



                                                  12                                              ·'
                                                                                                       I

           After being placed in c~tody, Defendant Hill was     informe\i by Trooper Kirby    Jt hl
  was being detained for a parole violation. N.T. 8/5/14, p. 52. Per such past discussioJ           fut
  troopers notified Agent Gardner of the Defendant being taken into custody. N.T. 10/2/14 pP,.

  30-31.    Following the Defendant's apprehension, he was brought to the Pennsylvania . tat



  Hill was placed in a hording cell. Shortly thereafter, Agent Gardner arrived at the barracks· an·

  provided the state. troopers wlth u;-·board's commit and detain warrant for the Defe Id

  grounded in his having violated the terms and conditions of parole. N.T. 8/5/14, pp. 55-56.

  10/2/14, pp. 30-32. See also Commonwealth Exhibit CS-2-Commit           and Detain Warrant.

           Trooper Kirby and other law enforcement officers executed the search warrant fo th.

  residence located at 301 Cedar Woo-d Circle, Kennett Square, Pennsylvania, subsequent t th~   1
  Defendant's being taken into custody. Per this search warrant's authorization, Trooper I<drbJ

  was interested in seizing specific pairs of shoes and other items that were past stolen durinJ thl

  two (2) robberies that took place at ~e     stores as well as the handgun the robber brandi!edl

  N.T .. 8/5/14, pp. 56-57. See also Commonwealth Exhibits CS-1 - Search Warrant No. MD 87

   13 issued July 24, 2013. To assist them in more easily locating the footwear, the troopers   L
  past provided pictures of the stolen shoes. N.T. 8/5/14, pp. 57. While executing the selch

  Trooper Kirby came upon the shoes and a leather bag that had been taken during the Con . or

  Township robbery, but was unable tofind any of the items stolen from the Manheim Town             hiJ
. · robbery. N. T. 8/5/14, pp. 56-57. TJie troopers also recovered during the course of their sear h       1
  pellet gun that fit the description of the firearm that was used by the assailant during the co s

   of the robberies. N.T. 8/5/14, p. 57.



                                                   13
                                                                                                        .

                                                                                                                      19
       Defendant.Hill was then tr;,.;,orted to the Pennsylvania State Police Media barl

where he was interviewed by Trooper Kirby and Corporal Michael P. Skahill.                       N.T.   ts,,4,
p. 60. The interview took place in a separated office like room modestly :furnished with , .J.i1

desk, a few chairs and a bench ~g

interview, the Defendant's
                                                area. N.T. 815114, pP: 60-62.          For purposes

                                 handcuffs were removed, but for safety concerns he war stli.11
                                                                                                        r        ,s



restrained to the benchseat via leg shackles. N.T. 8/5/14, p. 61. Trooper Kirby and Co o al

Skahill sat at the nearby desk. N.T. 8/5/14, p. 61.

        The interview began by Trooper Kirby informing Defendant Hill th.at they " ... wet

investigating two (2) ro b~eries, onti; Manhei~ Township, Lancaster County and one 1)

Concord Township, Delaware County.              And that I would like to speak to him about tho e

robberies and he agreed to speak with me."             N.T. 8/5/14, p. 63. Immediately followi g Js

summarized description of the investigation's subjects, Trooper Kirby utilized a Miranda kg ls

Warning and Waiver form and readDefendant-Hill                 his Miranda rights. N.T. 8/5/14,             l.    6 .

Trooper Kirby read the Miranda Rights Warning and Waiver form word-for-word. N.T. 815/1 ,

pp. 64-66.    .

        After reciting verbatim the Miranda warnings, Trooper Kirby handed the fo
                                                                                                                      ~or
Defendant Hill, who appeared to review and read the same before he signed the document                                J
confirming bis understanding of those rights, bis waiver of such           and ~greement to speak wi              ,e

troopers.    N.T. 8/5/14, pp. 72-74. Corporal Skahill was also present during Trooper}                      ·bys

recitation of the Mrranda warnings and relatedly observed the D~endant                      execute the to

subsequent to his review. N. T. 8/5/14, pp.        111-q.    Both Trooper Kirby and Corporal Sk                  11



19
   Defendant Hill was driven from the Avondale to the Media barracks by state police personnel other than         op r
Kirby. N.T. 8/5/14, p. 54.
                                                       14 ·
well si~ed the   =:       rights waiver form. N.T. 8/5/14, p. 74. See also Commonial

Exhibit CS-4 - Rights Warning and Waiver Form,

       At the time of his interview, th~Defendant was not under the influence of alcohol

controlled substance, falling asleep, ~ethargic) or displaying any signs that he was und r qe

influence of any intoxicants. N.T. 8/5/14, pp. 66-69; 113-15. Defendant Hill also          d nbt

manifest any signs that he was s~eaing from any mental disease or defect N.T. 8/5/14,, .        J
The Defendant did not evidence to the troopers that he was in any way illiterate, or co

read, write or understand the English language. N.T. 8/5/14, pp. 69-70, 116-17.

       The Defendant's demeanor, appearance, physical condition, his responses

questions, and interactions with the tro.opers did no.t cause Trooper Kirby to question whelr       e

lacked the mental capacity to speak with the trooper and/or answer questions. N.T. 8/5/14, . 7 .
 .                                  ·~,·
                                                  _   ... .... ,.
                                                                    ..
                                                                         .

Defendant Hill did not display signs of suffering from any cognitive disability. N.T. 8/5/14,

70.

       'Throughoutthe interview's entirety, including but not limited to the Defendant ei

advised of his applicable Miranda rights, neither Trooper Kirby nor Corporal Skahill phys c y
                                     r":·_.,.,,..,..

accosted Defendant Hill and/or threatened the same. The troopers Iikewise did not i             j
manner threaten the Defendant's family members. Trooper Kirby and/or Corporal Skahi11 ·a

not in exchange for Defend~t Hill·· · war.iving his constitutional protections and provi1·ng a
statement promise him anything. N .T. 8/5/14, pp. 70-72, 115-16.

       After the Defendant and trooperssigned the Miranda Rights Warning and Waiver o .

but prior to the start of the interview, Trooper Kirby informed Defendant Hill that the

discussions would be recorded. N.T. 8/5/14, p. 74. See also Commonwealth Exhibit C :-5

Audio Recording of Defendant's Statement. The Defendant did not object to the interview
recorded. N.T. 8/5/14, p. 119. The recording device was never turned off during the entir ty f

the interview. N.T. 8/5/14, p. 119 .. ,. - ··                    ..                                 ·



whe~ outside the presence of Trooper Kirby, that he was afraid                     ?f Trooper   Kirby or mentio   tlat

Trooper Kirby bad allegedly assaulted him physically. N. T. 815114, pp. 118-19. Defen,                            H ll

relatedly did not reference his being -subdued by the troopers when taken into custody and/ r

request of Corporal Skahill that he be afforded medical treatment. N.T. 8/5/14, pp'. 118-19,l 12 -

25.



                                                                                                                  4,
        Corporal Skahill observed during the interview that Defendant Hill did not displa any

visible signs of injury. The corporal noted the": was no bruising about the Defendant's

arms, forehead or neck. Corporal Skahill further saw Defendant Hill had no cuts or lacer tions

and ~s nose was not bloodied.           N.T. 8/5/14, pp. 79~8~, 119-20.                   The corporal identi edla

number of photographs taken of the Defendant when processed that morning all of                                   hi h

depicted Defendant Hill to be injuryfree.                N. T.        snn 4, pp.   119-20. See also Comm cm eall

Exhibits CS-6, CS-7, and CS-8 -Defendant's Processing Photographs.

         Defendant Hill at no time when being interviewed by the troopers requested or i

 other manner indicated he wanted the questioning to cease. The Defendant did not durin

· interview refuse to answer the troopers' inquiries.                     Defendant Hill did not directly sta e · r
                                         ,;/'''·~,.--·


 otherwise indicate he wanted counsel's assistance.                       N.T. 8/5/14, pp. 72, 77, 113. See al o

 Commonwealth Exhibit CS-5 -Audio Recording of Defendant's Statement.

         Defendant Hill during the course of the interview admitted to ~eing·the :individu,_th t

 committed the two (2) shoe store robb~ies.              N. T. 8/5/14, p. 80. See also Commonwealth E:xlhillit

 CS-5 -Audio Recording of Defendant' s Statement

                                                             16



                                           -·'*"'·····
                                                                                                     I··


        Defendant Hill testified at the suppression hearing before this court.

132-69. In his testimony, the Defendant relayed to the court that at the time of his detention , e

was verbally and physically abused by Troopers Richardson and Kirby, specifically that T

Kirby threatened him, kicked him in the side of the head, and stepped on his head with all

trooper's weight. N.T. 8/5/14, pp. 135-36. Defendant Hill additionally informed the co           th t

~e only reason he provided Trooper Kirby with directions to the Pennsylvania State oli1e

Avondale barracks was that he was afraid the trooper was driving to an isolated locati n

continue unobserved his assault on the Defendant, N.T. S/5/14, pp. 137-38.
                                                                                                      I
        Defendant Hill additionally testified that on arriving at the Pennsylvania State Police

Avondale barracks Trooper Kirby threatened the Defendant's            girlfriend and children wi

eviction from their home. N.T. 8/5/14, p. 141.

        Defendant Hill also asserted.that during }¥s interview at the Media Pennsylvania Stat

Police barracks he informed the troopers he did not want to talk, the troopers discarded a fir t

Miranda rights form as well as "forced" him to sign a second Miranda Rights Warning] an·

Waiver form, and that. he was afraid of the troopers, notably Trooper Kirby. N.T. 8/5/1        ;t   pi

144-45, 148. See also Commonwealth Exhibits CS-4 +Rights Warning and Waiver and cJ-5 -

Audio Recording    of Defendant's    Statement.                                                  l
. IL The court erred in ref using to suppress the statement that Mr. Hill supplied to police si ce
  it is the fruit of a seizure that was conducted without legal justification and in violation oJI a.
                                Const. art 1, § 8; U.S. Const. amd. IV, XIV

See Statement of Matters Complained,......~--No. I.

        By way of this first appellate complaint, Defendant Hill maintains that the court erre

 its decision to deny the requested exclusion of the Defendant's statement to investigating



                                                      17
troopers that was given following his purportedly illegal seizure.     See Statement of ~rter

Complained, No. 1. See also Order dated OctoberZl , 2014.                                   l
        Because of the most generalized nature of this appellate complaint, the co!                   i

constrained to assume that on appeal Defendant Hill similar to the argument advanced durin th

litigation of his suppression claim is once more challenging the lawfulness of state     trot."'
taking him into custody for then being a state parole violator. N:T, 8/5/14, pp. 11-16 andJ"·

10/2/14, pp. 7-40. See also Defendant's Motion for Suppression of Evidence and Defendant'

Memorandum of Law in Support of Suppression Motions.

meritless.
                                                                   Any such error assignmet i



        Under both the United States Constitution's Fourth Amendment and Article 1, Sect\on
                                                                                                l
of the P~lvania         Constitution,,- warrantless - searches   and seizures   are presump~\>e1

unreasonable and therefore prohibited,' excluding established exceptions.       Commonweal}h

Williams, 547 Pa. 577, 584-85, 692 A2d 1031, 1034-35 (1997) citing Schneckloth v

Bustamonie, 412 U.S. 218, 219, 93 . .S.Q.
                                     ,,,e,,'
                                             2041, 2043 (1973); and Commonwealtlt v. Kohl, 53

Pa. 152, 171-72, 615 A.2d 308, 318 (1992).

   ·    It is a recognized exception to the warrant requirement that state parolees are subje t

warrantless arrests stemming from their violating the terms and/or conditions of parole relt

Smith v. Commonwealth, 131 Pa.Cmwlth, 360, 367, 570 A.2d 597, 600 (1990). A parolee ma

be lawfully arrested absent a warr:: ,whether the violations are of a "technical" naturl ol

grounded .on an allegation of new criminality. Commonwealth v. Lyons, 382 Pa.Super. 438,        r.j   S

46, 555 A.2d 920, 923 (1989). See also ~1 Pa.C.S. §6152 ("An agent is declared to be a.p acl

officer and is given police power· and authority throughout this Commonwealth to arrest ... an



                                                 18
            .                             .~.   -~·
parolee         for failing to report as required by the terms of his ... parole or for any other ~iolati n

of the     parole.").

          Probation-parole agents may enlist the assistance of other law enforcement persoil               ·o

apprehend and take      into custody a par~~~ violator. Commonwealth v. Lyons supra 382 PaS
at 44243, 555        A.2d at 922. When acting at the behest of a probation-parole agent, p                1
                                                                                                        li r.e

authorities may take physical custody of a parole violator even ~ough probation-pLole

personnel are not then physically on scene and/or regardless of whether such an order of

has yet to be entered and/or an arrest warrant bas then been issued. Id. 382 Pa.Super. at 445-4],
                                                                                                      t1
555 A.2d at 923-24.

          Material to Defendant Hill's contention bis subsequent statement was the "fruit" ofbeint

megally taken into custody, it is long-settled that "[a]ny evidence obtained as a result              j[
unlawful seizure] should ... be suppressed as 'fruit of the poisonous tree.' '' Commonweaz!h .

Myers, 728 A2d 960, 964 (Pa.Superrl999) citing Wong Sun v. United State~, 371 U.S. 471t· 8



                                                                                                      r
S.Ct. 407, 9 L.Ed.2d 441 (1963).                      "Evidence obtained from an unreasonable ... seizurr i

inadmissible at trial."        Commonweaitk v. Bell, 871 A.2d 267, 273 (Pa.Super, 2005)

Commonwealth v. Campbell, 862 A.2d 659, 663 (Pa.Super. 2004). An inculpatory statement

results from an unlawful arrest is tainted by such illegality and should be excluded.

Commonwealth v. Agnew, 411 Pa.Super.· 63, 79, 600 A.2d 1265,_ 1274 (Pa.Super, 1991) ci(:

Wong Sun v. United States supra; Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980

(plurality opinion); and Commonwealth v. Earley, 468 Pa. 487, 364 A.2d 299 (1976).

          The credible evidence at bar reveals the Defendant's assigned Pennsylvania Boar                  o

Probation and Parole State Agent, Dage Gardner, had more than sufficient cause to believe a o

July 2013 Defendant Hill was in violation of the terms and conditions of his parole oversi

                                                               19
                                                                                            .l

including but not limited to unapproved,           out-of-county residency   and traveling, abs            t

permission, beyond Pennsylvania. See Commonwealth Exhibit CS- 11 - Order to Rel

 Parole. Agent Gardner resultantly decided the Defendant as a parole violator was to b

 into custody and relatedly asked directly of Pennsylvania State Police personnel that the tr op .rs



                                                                                           r
 on encountering the Defendant were for such reasons to apprehend him. N.T. 10/2/14,

 31, 39. Acting on this request of Agent Gardner for Such assistance, Pennsylvania State                  rs

 took Defendant Hill into custody.                                                               I
        During his supervision of , Defendant Hill, Agent Gardner became aware                             e

 Defendant ;as not living at his past, approved, Philadelphia County residence, but rath r               Jas
 discovered to have been at the 311 Cedar Wood Circle (Chester County) residence.

 10/2/14, pp. 19-20, 26, 38, 39-40. The Defendant had also past lied to Agent Gardner ab

 children's supposed Chester County.residence,      N.T. 10/2/14, pp. 13-15. Similarly, throu             is

. conversations with Trooper Kirby, Agent Gardner became aware of Defendant Hill also vio                Jg
 his parole by leaving the limits of Philadelphia County through not only living in Chester C,~

 Pennsylvania, but also traveling about Marylsnd and Delaware. N.T. 8/5/14, pp. 26, 36-3 1, 3 -

 40.   As Agent Gardner was wellaware with ~good, specific and articulable cause                     t

 Defendant had committed numerous parole violations his decision to have Defendant Hill tak n

 into custody was legally proper. Commonwealth v. Lyons supra 382 Pa.Super. at          445-4Jf 5f5
 A.2d at 923. N.T.     10/2/14, pp. 30-31. See also Commonwealth Exhibit CS-2 - Cammi\ Jd

 Detain Warrant.

         While this court recognizes that the issue before the Superior Court in COmmonwearh

 Lyons was the propriety of a county probation-parole officer requesting police authorities'

 apprehend a violator, the actions of state Probation and Parole Agent Gardner at bar enlisting
                                                                                                     r
                                                   20
                                       -····.···
                                      ..
violations is simply a distinction   withOllt a materialdifference. Id. 382 Pa.Super, at 442-44,   rs i
A.2d at 921-23. N.T. 10/2/14, p. 39 .. This court certainly can conceive of no good reaso to       1
conclude that although county probation-parole officers may solicit law enforcement help ,

effectuating a warrantless apprehension of such via lators, agents of the State Board of Probalo,

and Parole are prohibited from requesting of police personnel this very same assistance an1to



being taken into custody. Id. 382 Pa.Super. at 442-43, 445-47, 555 A.2d at 922-24.

        Acting at the behest of Agent Gardner, the Pennsylvania State Police lawfully took th0]

Defendant into custody for then being-in violation of his state parole's governing terms an             ]

conditions. N.T. 10/2114, p. 25. N.T. 8/5/14, pp. 40-41. See also Commonwealth Exhibits                -2!

- Commit and Detain Warrant and CS-11 ·- Order to Release on Parole.

        As Defendant Hill was legally placed in custody, the statements he made stemming               j
this seizure were not the product of any unlawful act on part of the Pennsylvania State troo · ers

and/or Pennsylvania Board of Probation and Parole Agent Gardner. See Smith v, Commonwealt                    I
su~ra 131 Pa.Cmwlth. at 367, 570 A.2d at 600 and Commonwealth v. Lyons supra 382 Pa.Suber.

at 445-46, 555 A.2d at 923. See also Commonwealth v. Myers supra 728 A.2d at 964 cibn

Wong Sun v. United States supra; .Commonwealth v. Bell supra 871 A.2d at 273 cibn

Commonwealth v. Campbell supra 862 A.2d _at -663; Commonwealth v. Agnew supra l11

Pa.Super. at 79, 600 A2d at 1274 citing Wong Sun v, United-States supra; Commonwealtf v,

Nelson supra; and Commonwealth v. Farley supra. .The Defendant's appellate complaint of his

subsequent statement being "tainted"      h,y, an illegal seizure is therefore   meritless.



                                                     21
!IL The Corm erred in refusing to .:        the statement that Mr. nm supplied to policlin e
  it was improperly induced, and therefore, not knowingly, voluntarily, or intelligently m~de.

See Statement of Matters Complained, No. 2.

         Unlike Defendant Hill's first appellate complaint which maintained his stateme t             rs

"tainted" or the "fruit" of bis purpo~y    being   raJren into custody   unlawfully and mandated ,,

to be suppressed, the Defendant via this error assi~e~t        directly challenges the legality±f Jis

audio record statement claiming" ... it was improperly induced and therefore, not kno ·                ,

voluntarily, or intelligently made."    See Statement of Matters Complained, No. 2. Se al o

Commonwealth Exhibit CS-5 -Audio Recording           .of Defendant's   Statement.

         Similar to his first complaint on appeal, this second assignment of error as stated is al o

much generalized.    Hence, this court is once more constrained to assume that for purpJ es f

appellate review Defendant Hill, like was advanced during the exclusionary litigation, is ag ·

arguing that the court erred in not finding the Defendant's state:nent was the product ofp       si al

and/or verbal abuse and resultantly, not voluntarily given. N.T. 8/5/14, pp. 11-26, l32-69r            e

also·Defendant's Motion for Suppression of Evidence and Defendant's Memorandum of Daw

Support of Suppression Motions. This appellate complaint on the credible case record is

merit.

         The Pennsylvania Supreme Court has past held the following in regard to state

made by a defendant who is subject to a custodial detention:

                A confession obtained during a custodial interrogation is
                admissible where the accused's right to remain silent and right to
                counsel have been explained and the accused has knowingly and
                voluntarily waived those rights. The. test for determining the
                voluntariness of a confession and whether an accused knowingly
                waived his or her rights looks to the totality of the circumstances
                surrounding the giving of the confession.

Commonwealthv. Jones, 546 Pa. 161, 170, 683 A.2d 1181, 1189 (1996).
                                                   22
        As for the defense claim that the Defendant's recorded statement to investigators

involuntary coerced, the Supreme Court of Pennsylvania has also directed as follows:

              Voluntariness is determined from the totality of the circumstances
              surrounding the confession. Arizona v. Fulminanie, 499 U.S. 279,
              111 S.Ct. 1246 (1991); Schneckloth v. Bustamante, 412 U.S. 218>
              93 S.Ct. 2041 .(1973); Commonwealth v. Jones, 546 Pa. 161, 683
              A.2d 1181 (1996). The question of voluntariness is ... 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. Miller _v,/'Fenton, z.96 F.2d 598 (1986). The
              Commonwealth has the burden of proving by a preponderance of
              the evidence that the defendant confessed voluntarily.
              Commonwealth v. Watts, 319 Pa.Super. 179, 465 A.2d 1288 (1983)
              affirmed 507 Pa. 193, 489 A.2d 747 (1985); see also Colorado v.
              Connelly, 479 U.S. 157, 107 S.Ct, 515 (1986). . ..

              When assessing voluntariness pursuant to the totality of the
              circumstance, a court should look at the following factors: the
              duration and means of the interrogation; the physical and
              psychological state of the accused; the conditions attendant to the
              detention; the attitude of the interrogator; and any and all other
               factors that could drain a person's ability to withstand suggestion
               and coercion. Commonwealth v. Jones supra 546 Pa. at 178, 683
               A.2d at 1189 citing Commonwealth v. Edmiston, 535 Pa. 210, 634
               A.2d 1078 (1993).

Commonwealth v. Nester, 551 Pa. ·157, 163-64; 709 A.2d 879, 882 (1998). See fs
Commonwealtb v. Roberts, 969 A2d 594, 599 (Pa.Super. 2009) citing Commonwealt1 v.\
Templin, 568 Pa. 306, 313-14, 795 A.2d 959, 964 (2002). (" ... [T]he Pennsylvania Supre.
Court. has specifically disavowed the use of a narrow 'but-for' test when determi · .
voluntariness.")                                  .
                                                                                                l
       Foremost, as is salient to this appellate complaint's resolution, "[iJt is within

suppression court's sole province as fuctfinder to pass on the credibility of witnesses and·   IJ
weight to be given their testimony." Commonwealth v. Gaffney, 2015 WL 5936811, p. 3 quotr

Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006). See also Commonwealth v.

Galendez, 27 A.3d 1042, 1046 ~a.Super. 2011) quoting Comm~nwealth v. Elmobdy, 823 A 2d
                                      .;.·:~--:-




                                                   23
that of Agent Gardner .;edible while discounting Defendant Hill's contrary testimonial claJ"      Is

Defendant's allegation that on     ~=
       Ai the core of the defense's challenge to his statement's voluntariness was je

                                              him into custody Trooper IGrby allegedly 1ker
Defendant Hill in the side of the head and then stood with. his full body weight otl ,e

Defendant's head·. N.T. 815114, pp. 135-36.          Defendant Hill also testified that Trooper

supposedly threatened him while enroute from the scene of his being taken into custody        an.1
                                                                                                  ~:r  e

Avondale barracks.    N.T. 8/5/14, p. 138. According to the Defendant, Trooper Kirby als
                                        ...
purportedly threatened that he woulddo his utmost to have Defendant Hill's girlfriend e1ct

from her home. N.T. 8/5/14, p. 141. The Defendant as well proffered that Trooper Kirby thret
                                                 .                                                 I .
away and/or otherwise destroyed a fust·Ml· randa rights form he had allegedly signed,       "Sl"
signed under duress, to protest bis treatment and conditions. N.T. 8/5/14, p. 142.

       Undercutting the Defendant's··as'serti.ons in such regard, the credible evidence at br i

wholly consistent with Trooper Kirby's testimony he used a modest measure of physical for e t

control the noncompliant Defendant Hill's physical movements so that a colleague state trorl pe.

could handcuff the Defendant. N. T. 8/5/14, pp. 48-52, 90. Furthermore, the relevant case re or.

readily reveals the balance of Defendant Hill's physical and/or verbal abuse claims t, b



and CS-6, CS-7, CS-8 - Defendant's Processing Photographs.

        Wrthin thirty (30) to sixty (60) minutes of being taken into custody, the Defen ·,

interacted with his assigned State Parole Agent, Dage Gardner. N.T. 815114, pp. 13 9-40 .. ~           I

 Gardner neither offered any testimony that he observed the Defendant to be physically inj             ,



                                                     24
nor that the Defendant complained to him about being physically abused by Trooper Kirby.

10/2/14, pp. 7-40.
                                                                                                1
                                                                                                . .

       Corporal Skahill related thatwhen present for the Defendant's interview he obsc ed..

about him no signs of physical injury. Similarly, Corporal Skahill noted that the pictures t4

after the Defendant was placed in custody also did not reveal any such marks or indicators   a, ~
injury. N.T. 8/5/14, pp. 119-20. See also Common~ealth Exhibits CS-6, CS-7, CS'[8 -

Defendant's Processing Photographs.. _ ·

       Moreover, the audio recording of the statement Defendant Hill now contends to ha e

unknowingly, involuntarily, and unintelligently given outright belies bis claims of phy1c 1

and/or verbal police misconduct. See Commonwealth Exhibit CS-5 - Audio Recordinl                    f

Defendant's Statement.

       Having listened to the one (1) hour and fifteen (15) minute recorded interview this cft

heard nothing in the Defendant's tone, affect, and/or voice inflections suggesting that he ~

physically victimized to the nature and the degree he so testified at the suppression procetl

Throughout the interview's entiretyjhe Defend8:1twas largely conversational and in a er

instances was joking, laughing and/or chuckling. When describing how he had observed je

police surveillance prior to law enforcement personnel approaching him as well as                   e

circumstances of bis being taken into custody, the Defendant made no mention· of the trooper s

supposed physicality.. The D~endantjyring his interview voiced ~ comp~ts whatsoev1

the corporal about being physically accosted even. on Trooper. Kirby leaving the room :6Jr [

period of time to obtain irems of seized physical evidence. See Commonwealth Exhibit CS 5 [

Audio Recording of Defendant's Statement.



                                                25
.   '                                                                                                         I
                                                                                                              I
                                                                                                              I
               The Defendant was subject        In_,~,'""gle   inci~ent of interrogation lasting in length on1 (I·

        hour and fifteen (15) minutes.          See Commonwealth Exhibit CS-5 - Audio Recording o

        Defendant's Statement. His interrogation was preceded by involved state troopers proplerlJ

        providing him Miranda warnings and the Defendant knowingly, intelligently, and volunjrili

        waiving those rights. See Commonwealth Exhibit CS~4 - Rights Warning and Waiver. i.T

        8/5/14, pp. 63~65, 111-12. Throughout the entirety· of bis statement the tone of the intervie

        investigatorswas conversational.                                 ·



        evidence at bar the Defendant suffered from any intellectual disability and bis

        otherwise demonstrates he was certainly of sound intelligence. N.T. 8/5/14, p. 70.
                                                                                                              I
               By bis own acknowledgement, the Defendant earned his "OG" (''Old Guy") sta

        through garnering street credibility as a "problem solver." As recounted by the Defendant in              r
        statement, he had prior experiences interacting with law enforcement authorities for p,as
                                                   ..   --.·
        instances of unrelated crin:rinality.

                The Defendant's interview and resultant statement were obtained by investigaf rs

        approximately four (4) "to five (5) hours subsequent to bis being taken into custody and

        allegation that he was then physically ab~             by Trooper Kirby. The Defendant does not ani

        and there is simply no evidence that during bis interview he was subject to any type of physical

        and/or other improprieties. During bis statement the Defendant wa~ not the object of                      ly
        physical or threats otherwise. In their interview of him, involved state troopers observed o

        manifestations of substance intoxication and/or mental disease symptomologies,                                e

        Commonwealth Exhibit CS-5 - Audio "Recording of Defendant's Statement                       See also N. .

        8/5/14, pp. 66-69, 113-15.

                                                                26
       In the context of an appeal attacking a trial. court's denial of a statement's suppres io ,

challenged on the grounds of involuntary coercion, it has been argued that the absence of su

audio recording impedes an informed determination as to the statement's voluntariness b

precluding the courts from scrutinizing vocal inflections, background noises, and/or other a        l
indications of involuntary coercion. Commonwealth v. Paxton, 821 A2d 594, 595-96 (Pa.Su er



demands the recording of a defendant's confession as a means to provide reviewing courts ·

direct insight into the interrogation procc~s and the resulting statement subsequently challen~e

as involuntary. Commonwealth v. Harrell, 65 A.3d 420, 428-29 (Pa.Super. 2013).

       In making its decision that Defendant Hill's claims of his being improperly compelle t

provide an involuntary statement lacked credibility, this court·was uniquely positioned. It a

the benefit of both the entire statement being audio recorded as well as the pictorial evidenc o ,

the Defendant's processing photograplyl taken almost contemporaneously with his statement       k
timely subsequent to his supposed assault at the hands of Trooper Kirby. N.T. 8/5/14, pp. 78 80

See also Commonwealth Exhibits CS-5 - Audio Recording of Defendant's· Statement and C -6

CS-7, CS..,8 -Defendant's Processing Photographs.

       This court heard and considered the vocal inflections of both the interviewing troo ers

and Defendant Hill as well as the background noise and/or oilier aural indications of involun

coercion, if any.   Commonwealth v. Paxton supra 821 A2d at 595-96. The proces

photographs allowed this court to compare and contrast relevant, physical images of re
                                                                                                r
                                                                                                j

Defendant with what it heard when reviewing the audio recorded statement in the context of ithe

defense's police misconduct contentions.



                                                '27
                                                                                             i
                                                                                             I
                                                                                             I
       Through this combination of verbal and illustrative evidence, this court enjoyed      +r ct
insight regarding the Defendant's interrogation process and his resulting statement attack~                            s



Defendant Hill's assertions of law enforcement abuse and it relatedly finding his statem+t                         Io
                                                       .                                         I
have been knowingly, intelligently, and voluntarily provided was informed and. reasoned ~v n

the credible evidentiary presentation.                                                           I
        Salient to Defendant Hill's exclusionary claims, this court was tasked with determ.r                           g

the credibility of those testifying andthe weight, if any, to be afforded each witness's testimon .
                                                                                                     I

See Commonwealth v. Gef/i,ey supra 2015 WL 5936811, p. 3 quoting Commonwea/t                                           .

Gallagher supra 896 A.2d at 585. See also Commonwealth:v. Galendez supra 27 A.3d at                  j°                6

quoting Commonwealth v. Elmobely ::~ra 823 A.2d at 183. This court's exercising of itsj f:ia

finding prerogative was grounded in reasonableness and benefitted from unique insights iii e

context of suppression litigation not commonly available. See Commonwealth v. Conrad sip a
                                                                                                         i
892 A.2d at 828 quoting Commonwealthv. Roses supra 875 A.2d at 346.                         . lI                   .
                                                                                                         !
        On the credi'?le evidence at ~:~~-the prosecution established by a fair preponderant                           f

the evidence that' under the totality. of salient circumstances Defendant Hill's statement iW s

voluntarily given.   Commonwealth v. Nester supra 551 Pa. at 162-63, 709 A.2d at 882 ~d

Commonwealth v. Roberts supra 969 A.2d at 599 citing Commonwealth v. Templin supra                           lsJ8
Pa. at 313~14, 795 A.2d at 964.          See also Pa.SJJI (Crim) 3.04(B)(C)(D).     This appeila-e

complaint on the credible, salient case record lacks merit.                                                  II
                                                                                                             I


                                                                                                             l
                                                                                                              II

                                                  28
                                                                                                    I
 IV. The Court erred in refusing to suppress the fruits of the residence search at issue herefln
           since the warrant for that search was not supported by probable cause.
                                                                                                    !
                                                                                                    I
See Statement of Matters Complained,No. 3.

       Defendant Hill maintains via this :final appellate complaint that the court erred in   fa+   I



to suppress the physical evidence recovered pursuant to the search of the residence, 301          Ill ·
Wood Circle, under the contention that the authorizing warrant lacked constitutionallynecess
                                                                                              .         J


probable cause. See Statement of Matters Complained,No. 3. However, the search warrant Jas



cause and the search of the residence vl{.f:lS thus lawful. This appellate complaint of the Defen~anj

is meritless.                                                                                               [

        Salient to the suppression of physical evidentiary items, in determining whether a searc

warrant application establishes constitutionally mandated probable cause, an issuing·authJitJ
                                                                                                            I
                                                                                                        r
may not consider any evidence beyond the supporting affidavits.               Pa.R.Crim.P. 203(.B)
                                          -                                                                 I
Relatedly, at a resulting hearing seeking to exclude from the Commonwealth's use at trial.

items obtained pursuant to a search warrant, " . . . no evidence shall be admissible to establi
                .                  .                                                                            I
probable cause other than the [supporting]affidavits .... " Pa.R.Crim.P. 203(D).                                j
                    Article I, Section 8 and the Fourth Amendment each require that                             l
                    search warrants be supported by probable cause. 'The linch-pin
                    that has been developed to determine whether it is appropriate to
                    issue a search warrant is the test of probable cause.'
                    Commonwealth v. · Edmunds, 526 Pa. 374, 586 A.2d 887, 899
                    (199.1) (quoting Commonwealth v, Miller, 513 Pa. 118, 518 A.2d
                     1187, 1191 (1986)). 'Probable cause exists where the facts and
                    circumstances within the affiant's knowledge and of which he has
                    reasonably trustworthy information are sufficient in themselves to
                    warrant a man of reasonable caution in the belief that a search
                     should be conducted.' Commonwealth v. Thomas, 448 Pa. 42, 292
                    A.2d 352, 357 (1972).

Commonwealth v. Jones, 605 Pa. 188, 199, 988 A.2d 649, 655 (2010).

                                                   29
                                                                                                           I.
                                                                                                           I
         "The task of the issuing magistrate is simply to make a practical, common sense decisi · n

. whether, given all the circumstances       set   forth in the affidavit before him, . . . there is al ti ·
                                                                                                            I
probability that ... evidence of a crime will be found in the particular place." CommonwealthI v,
                                                     .


Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). "The standard for evaluating whtl                                                  I


probable cause exists fur the issuance of a search warrant is a 'totality of the circumstances' jst             I
as set forth in Illinois v Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), i                                             d
                                                                                                                I
adopted by [the Pennsylvania Supreme Court] in Commonwealth v, Gray supra at 484, 503 .A.. d

at 925." Commonwealth v. Jones, 542 Pa. 418, 424, 668 ;,2d 114, 116 (1995). '1'b~ {ts

decision indicated that the 'totality of the . circumstances' standard is flexible and n t

hypertechnical." Commonwealth v. Klimkowicz, 331 Pa.Super. _75, 78, 479 A.2d 1086,                         Irr
(1984). This probable cause dete~tion                necessary to a search warrant's lawful issuani ls

" ... based on the factual and practical considerations of everyday life on which reasonable ~d
     '
prudent men, not legal technicians, act" Commonwealth v. Ruey, 586 Pa. 230, 252, 892 A.2'd
                                                                                                                    lJ
                                                                                                                    I
                                                                                                                    l

 802, 815 (2006).

         In reviewing a Magisterial Di~!!i,ct Judge's decision to issue a search warrant, the yiI
                                         .                                                                              I
 court has the obligation to assure that the magistrate's probable cause. determination hall
                      .                                                                                                 !
 substantial basis.       Commonwealth v. Jones supra 542 ·Pa. at 424, 668 A.2d at                                  1j1
                                                                                                                                     1;
 Commonwealth v, Gray supra 509 Pa. at 484, 503 A.2d at 926 citing Jones v, United States, 16f

 U.S. 257, 271, 80 S.Ct. 725, 736 (1960)_. When deciding whether a challenged search                 wJl.l
 affidavit meets constitutional scrutiny, the trial court must accord the issuing Magisterial
                                                                                                     .
                                                                                                         Disttit            I
                                                                                    I
 Court's probable cause determination deference and employ a common sense, nontechnica

 review. Commonwealth v. Jones supra 542 Pa. at 424, 668 A.2d at 117 citing Commonwealt11

 Baker, 532 Pa. 121, 126-27, 615 A.2d 23, 25 (1992); Commonwealth v. Gray supra 509 Prul a

                                                        30                                                                      !
                                                                                                                                iI
                                                                                                                                I
                                                                                                                                I
                                                                                             . I

                                                                                               I
                                                                                               I
                                                                                               I
 484, 503 A2d at 925 [citations omitted]. See also Commonwealth v, Jones supra 605 Pa. •12

 988 A.2d at 656 quoting United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.~d. d

 677 (1984) ("Reasonable minds frequently may differ on the question whether a particul

 affidavit establishes probable cause, and we hav~ thus concluded

 is most appropriately effectuated by according 'great deference' to
                                                                    tha(tbe preference for   w,,
                                                                                    a magis~ate's
                                                                                                                   s



 determination."),   'The validity of any search warrant must be determined on a case-byjcJ.

 basis considering the unique circumstances of each case." Commonwealth        v, Kltmkowtcz   r la
 331 Pa.Super. at 81, 479 A.2d at 1089.

        The affidavit offered in support of Commonwealth Exhibit CS-1 - Search Warran~N .
                                                          -                                        I

 J\ID 87-13 issued on July 24, 2013, sets forth adequate probable cause authorizing the search fdr
                                                                                                   I
                                                                                                   I
 those items specified of301 Cedar Wood Circle. See also CS-3-Search Warrant Inventory.
                                                 .                                                 I
        On em.ploying a common sense, non-technical examination of the "totality oft                               e
                                                                                                       l
 circumstances," it is' obvious that reqyj,siteprobable cause was offered in the supporting affi4a

 to lawfully authorize the residence's resulting search. The affidavit of probable cause tot~

 six (6) pages in length provides vast support for the search warrant such as the follo+                           :
                                                                                                           I


 Descriptions of the armed assail~ from the both robberies; The similarities between                       I
                                                                                                           I
                                                                                                           1

 Concord Township robbery and ~~-"·Manheim· Township robbery; A description of\ th

 perpetrator's motor vehicle used during both robberies, including the license plate           Jm
                                                                                                               1
 observed in the Manheim Township robbery; The recorded license plate being registered to th

 Defendant; The nclendant's status as a parolee; Photographs of the De~dant ~ompared to\thl

. composite sketch of the perpetrator ~   1he two (2) robberies; Stemming from the previous                    \,J
 unchallenged search warrant the Defendant's .cellular telephone and the records;              Ail
 Gardner's knowledge that Defendant Hill provided him with a false address; Investigation o

                                                     31
                                                                                                             !
                                                                                                             I
the motor vehicle owned by the Defendant's girlfriend Ieadingto Defendant Hill residing at13f01 .

Cedar Wood Circle; The Defendant's cellular phone data used in conjunction with G
                                                                                 .                           I
coordinates   and cellular   telephone towers revealing          his cellular   phone was in the vicinity   at t                 e

two (2) robberies when they took place; and Agent Gardner and the Pennsylvania State Pol~e s
                                                                                                                 i
past observations of the Defendant's             motor vehicle at 301 Cedar Wood Circle.                         i& e

Commonwealth Exbiblt Cd-Lv-Search Warrant No. MD 87-13 issued July 24, 2013.                                     l
       It is readily evident that these facts in their totality established the probable cau
                                             .               .                                                   I
constitutionally necessary to support the search warrant for the residence located at 301 C~

Wood Circle and the related search was legally proper. See Commonwealth v, Jones supra i54                           .
                                                                                                                     i

Pa. at 424, 668 A.2d at 117 citing Commonwealth v. Baker supra 532 Pa. at 126"27, 615 A.2tl t
                                                                                                                     I
                                                                                                                     I
25; Commonwealth v. Gray supra 509 Pa. at 484, 503 A.2d at 925. See also Commonwealtr 1.

Jones supra 605 Pa. at 200, 988 A:2d at 656 quoting United States v. Leon supra. \Th.

Defendant's third appellate complained is thus without merit.

                                             V. Conclusion

       On examining this matter and Defendant Hill) s appellate complaints under the standard
                                                                                                                         I

of review relevant to exclusionary claims' decision; of a trial court, it is clear that the recor~ ~

bar "supports the factual findings" of this court and that the resultant "inferences and l~g
                                                                                                                         I


conclusions" drawn by this court were reasonable and not en:oneous. See Comm.onweattt v

Conrad supra 892 A.2d at 828 quoting Commonwealthv. Rosas supra 875 A.2d at 346. See 'fls
                                                    .                                                                    I
Commonwealth v. El. supra 933 A.2dat 660 quoting Commonwealth v. Nobalez supra 805 .Al.2

at 600, appeal denied, 575 Pa. 692; 835 A.2d 70; (2003); Commonwealth v. Cook supra                                      165
                                                                                                                             I
A.2d at 873 citing Commonwealth v. Ayala supra 791 A.2d at 1207 citing Commonwealt'f v

                                                                                                                             I
                                                        32
Turner supra 772 A.2d at 972M73; and Commonwealth v. Ryerson supra 817 A.2d at 5l~Ml4 ·
                                                                                                         1

quoting Commonwealth v. Johnson supra 734 A.2d at 869.
        This court committed no error as the Defendant's detention was justified under Aken

Gardner's rea~oned determination that the Defendan. t had violated terms of his parole rel~asel ·

Agent Gardner's enlisting the assistance of state troopers to take the parole violating Defendan
                                               .                                                         I
into custody was legally permissible, the Defendant's statement to 'Irooper Kirby end            Corijj
Skahill was neither the "fruit" of a prior illegality nor the product of police misconduct, an~ tho'

search of 301 Cedar Wood Circle, Kennett Square, Pennsylvania was grounded on a lavyful,;·
                                                                                                             1 •


valid search warrant
                                                                         .                                   I
       For all the aforementioned reasons, the Defendant Hill' s sentencing judgment should b
                                                                                                             I
                                                                                                             !
affirmed.                                                                                                    '
                                                                                                 ~·
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                                                   33
