J-A22029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                       Appellee          :
                                         :
           v.                            :
                                         :
NATHAN LEE SKIDMORE,                     :
                                         :
                       Appellant         :     No. 2113 MDA 2013


     Appeal from the Judgment of Sentence Entered October 29, 2013,
              In the Court of Common Pleas of Fulton County,
            Criminal Division, at No. CP-29-CR-0000032-2013.


BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 08, 2014

     Appellant, Nathan Lee Skidmore,1 appeals from the judgment of

sentence entered following his conviction of six counts of robbery, one count

of theft, and one count of possession of a controlled substance.2 We affirm.

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

           [Appellant] was charged with three counts of robbery
     threatening serious bodily injury,2 three counts of robbery


* Former Justice specially assigned to the Superior Court.
1
 We note that certain court documents list Appellant’s first name as Nathan,
and other documents list his name as Nathen.
2
   Although in his notice of appeal Appellant purports to appeal from the
order denying his pretrial motion in limine, the appeal properly lies from the
judgment of sentence because pretrial orders denying a defendant’s motion
to    suppress    evidence   are     interlocutory  and    not     appealable.
Commonwealth v. Strong, 825 A.2d 658, 667 (Pa. Super. 2003).
Therefore, we have amended the caption accordingly.
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     threatening to commit any felony of the first or second degree,3
     three counts of robbery fear of immediate bodily injury,4 three
     counts of robbery by force,5 three counts of terroristic threats,6
     one count theft by unlawful taking or disposition,7 and one count
     possession of a controlled substance8 on February 3, 2013
     related to an incident at MacDonald’s Pharmacy on February 2,
     2013.    The Information filed by the Fulton County District
     Attorney on February 14, 2013, did not include the three counts
     of robbery fear of immediate bodily injury, the three counts of
     robbery by force, or the three counts of terroristic threats. On
     February 19, 2013, [Appellant] signed a waiver of arraignment
     and pled guilty to one count of robbery threatening serious
     bodily injury. On March 3, 2013, [Appellant] filed a Motion to
     Withdraw Plea of Guilty.9 The Motion to Withdraw Plea was
     granted on April 17, 2013. The trial date was set for September
     25 and 26, 2013, before Judge Angela R. Krom and the jury was
     impaneled on July 22, 2013.
          2
              18 Pa.C.S. § 3701(a)(1)(ii).
          3
              18 Pa.C.S. § 3701(a)(1)(iii).
          4
              18 Pa.C.S. § 3701(a)(1)(iv).
          5
              18 Pa.C.S. § 3701(a)(1)(v).
          6
              18 Pa.C.S. § 2706(a)(1).
          7
              18 Pa.C.S. § 3921(a).
          8
              35 [P.S.] § 780-113(a)(16).
          9
            It appears that even though [Appellant] was
          represented by Attorney Harper, he filed a pro se
          Motion to Withdraw Plea of Guilty.      Thereafter,
          another Motion to Withdraw Plea of Guilty was filed
          on April 9, 2013 by Attorney Harper.

          [Appellant] filed a Motion in Limine on September 12,
     201310 to suppress the written statement obtained on February
     2, 2013 by the Pennsylvania State Police. [Appellant] asserts
     that at the time the confession was obtained he was in a


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     confused and less than lucid state of mind as the result of being
     struck in the head by a metal pipe the morning of the
     interrogation. Motion ¶¶ 4, 8. [Appellant] alleges that despite
     knowledge of [Appellant’s] head injury and his confused mental
     state, troopers proceeded to obtain [Appellant’s] confession.
     Motion ¶ 9. Additionally, the written statement was obtained
     approximately five hours after [Appellant] had been taken into
     custody and before his preliminary arraignment. Motion ¶¶ 1, 5.
     [Appellant] asserts that based on the totality of the
     circumstances the confession was not voluntary and should be
     suppressed. Motion ¶¶ 10, 11.
          10
             A Motion in Limine Amended was filed on
          September 24, 2013.       The Motion in Limine
          Amended addressed the late filing of the Motion in
          Limine, otherwise the content is the same as the
          Motion in Limine.

           The Commonwealth filed an Answer to [Appellant’s] Motion
     in Limine on September 20, 2013. The Commonwealth denied
     that [Appellant] has grounds to have the written statement
     suppressed. Answer ¶ 1. The Commonwealth acknowledged
     that [Appellant] appeared to be under the influence of drugs and
     had difficulty focusing while writing the custodial written
     statement; however, [Appellant] appeared to be oriented and
     coherent, and willingly admitted his guilt. Answer ¶ 6. The
     Commonwealth asserted that [Appellant’s] custodial written
     statement was voluntary, that he received Miranda warnings,
     and that in the document itself [Appellant] acknowledges that he
     understood his rights and that he gave his statement voluntarily.
     Answer ¶ 4. The Commonwealth asserts that [Appellant’s]
     statement was voluntary, notwithstanding that [Appellant] was
     suffering from an injury or under the influence of drugs, as
     [Appellant’s] interrogation was not so manipulative or coercive
     that it deprived [Appellant] of the ability to make a free and
     unconstrained decision to confess. Answer ¶ 9.

          Based on the Court’s schedule, a hearing on the motion
     was held immediately before the trial began. At the hearing
     Pennsylvania State Police Trooper Michael A. Sprague (“Trooper
     Sprague”), Pennsylvania State Police Trooper Timothy Daniel
     Lear (“Trooper Lear”), and [Appellant] testified.      Trooper


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     Sprague testified to [Appellant’s] demeanor on February 2,
     2013. Trooper Sprague spoke to [Appellant] at his home and
     the police station and described [Appellant] as very hyper, as if
     he had drank several cups of coffee. N.T. p. 4. According to
     Trooper Sprague, [Appellant] did not exhibit any behavior that
     suggested he was not comprehending what was occurring. N.T.
     p. 4-5. Within thirty minutes of being brought back to the
     interview room, [Appellant] gave a verbal confession. N.T. p. 7.
     Trooper Sprague testified that he did not threaten or intimidate
     [Appellant], nor did he offer him leniency in exchange for his
     cooperation. N.T. p. 8. Trooper Sprague was unable to testify
     regarding the written statement as his shift was over and he
     went home shortly after [Appellant] had given a verbal
     confession. N.T. pp. 8, 10-11.

             Trooper Lear also testified that [Appellant] was talkative
     and that he did not appear to be impaired in any way. N.T. p.
     16-17.      Although Defendant attempted to negotiate lenient
     treatment in exchange for providing information about drug
     dealers in the area, Trooper Lear testified that he did not
     threaten, coerce, or promise [Appellant] leniency. N.T. p. 18.
     Trooper Lear was involved in obtaining a written custodial
     statement from [Appellant].        Trooper Lear testified that he
     initially left [Appellant] alone in the interrogation room to
     complete the written custodial statement. N.T. p. 19. Trooper
     Lear periodically checked on [Appellant] and gave him a new
     piece of paper when he saw that [Appellant] had scribbled out
     his entire statement.      N.T. p. 19.     While [Appellant] did
     eventually write and sign a confession, the handwriting was
     poor. In an attempt to clarify things Trooper Lear wrote a
     question and had [Appellant] answer the question. N.T. p. 20.
     Trooper Lear did testify he had referred to [Appellant’s] written
     statement as an “attempt” at a written statement in the police
     incident report that he authored; however, he stated this was
     only in reference to the page that had been entirely crossed out.
     N.T. pp. 23-24.

           [Appellant] took the stand during the hearing and testified
     that he can only remember parts of the day of February 2, 2013.
     N.T. p. 31. [Appellant] remembers being hit over the head with
     an iron pipe in the early morning hours, but he does not
     remember being in the hospital for his injuries. N.T. p. 33.


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      [Appellant’s] testimony was difficult to follow and he had to be
      instructed by his attorney to slow down. [Appellant] testified
      that he passed out on a bench at the police station and that the
      troopers were laughing at him. N.T. p. 36-37. In regards to the
      written statement, [Appellant] testified that he did not
      remember what he wrote down, but he did remember passing
      out and spilling coffee on the form. N.T. p. 37. [Appellant] did
      not remember writing an answer to the question written by
      Trooper Lear. N.T. p. 38.

             The Court found that the Commonwealth had proven by a
      preponderance of the evidence that based on the totality of the
      circumstances, [Appellant’s] written confession was voluntary.
      Therefore, by Order of Court dated September 25, 2013, the
      Court denied [Appellant’s] Motion in Limine seeking suppression
      of his written statement of February 2, 2013.

             The case went to trial at which the Commonwealth
      introduced the written statement as an exhibit. The jury found
      [Appellant] guilty of three counts of robbery threatening serious
      bodily injury, three counts of robbery threatening to commit
      murder, one count of theft by unlawful taking or disposition, and
      one count of possession of a controlled substance. [Appellant]
      was sentenced on October 29, 2013, to a State Correctional
      Institution for a period of not less than sixty-six (66) months nor
      more than one hundred thirty-two (132) months on each [of]
      the three robbery threatening serious bodily injury counts to be
      served consecutively. [Appellant] was also sentenced to six (6)
      to twelve (12) months on the possession of a controlled
      substance count to be served concurrently with the first count of
      robbery threatening serious bodily injury.

            [Appellant] filed a Notice of Appeal on November 26, 2013
      challenging the Order of Court entered on September 25, 2013,
      denying [Appellant’s] Motion in Limine to suppress his written
      statement. The Court ordered a concise statement of matters
      complained of on appeal on November 27, 2013.

Trial Court Opinion, 1/21/14, at 1-6 (footnotes in original).

      Appellant presents the following issue for our review:




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J-A22029-14



           DID THE TRIAL COURT COMMITT [sic] ERROR IN DENYING
      APPELLANT’S REQUEST TO SUPPRESS AN INCULPATORY
      STATEMENT MADE BY APPELLANT WHILE IN POLICE CUSTODY
      AND PRIOR TO PRELIMINARY ARRAIGNMENT WHERE THE FACTS
      AND CIRCUMSTANCES INCIDENT TO THE STATEMENT INDICATE
      THAT IT WAS NOT VOLUNTARILY GIVEN?

Appellant’s Brief at 3.

      Appellant argues the trial court abused its discretion in denying

Appellant’s motion in limine seeking to suppress the written statement that

he provided to the police.     Appellant asserts the Commonwealth failed to

meet its burden of showing that Appellant’s confession was voluntary

because he was not in a satisfactory physical or psychological condition to

make the written confession.

      We begin by observing that a motion in limine is a procedure for

obtaining a ruling on the admissibility of evidence prior to or during trial, but

before the evidence has been offered. Commonwealth v. Freidl, 834 A.2d

638, 641 (Pa. Super. 2003). The basic requisite for the admissibility of any

evidence in a case is that it be competent and relevant. Id.

      Furthermore, it is well settled that “[t]he admission of evidence is

within the sound discretion of the trial court, and will be reversed on appeal

only upon a showing that the trial court clearly abused its discretion.”

Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc)

(citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)).

Abuse of discretion requires a finding of misapplication of the law, a failure


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J-A22029-14



to apply the law, or judgment by the trial court that exhibits bias, ill-will,

prejudice, partiality, or was manifestly unreasonable, as reflected by the

record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).

        Moreover, we are aware that Pennsylvania Rule of Criminal Procedure

581, which addresses the suppression of evidence, provides in relevant part

as follows:

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

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

              The standard of review an appellate court applies when
        considering an order denying a suppression motion is well
        established.    An appellate court may consider only the
        Commonwealth’s evidence and so much of the evidence for the
        defense as remains uncontradicted when read in the context of
        the record as a whole. Commonwealth v. Russo, 594 Pa. 119,
        126, 934 A.2d 1199, 1203 (2007) (citing Commonwealth v.
        Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004)). Where the
        record supports the factual findings of the suppression court, the
        appellate court is bound by those facts and may reverse only if
        the legal conclusions drawn therefrom are in error. Id. It is
        also well settled that the appellate court is not bound by the
        suppression court’s conclusions of law.               Id. (citing
        Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455
        (2003)). However, [w]hether a confession is constitutionally
        admissible is a question of law and subject to plenary review.
        Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879,
        881 (1998).

              Thus, this Court does not, nor is it required to, defer
              to the suppression court’s legal conclusions that a
              confession or Miranda[3] waiver was knowing or
              voluntary.   Instead, we examine the record to

3
    Miranda v. Arizona, 384 U.S. 436 (1966).

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          determine if it supports the suppression court’s
          findings of fact and if those facts support the
          conclusion that, as a matter of law, Appellant
          knowingly and intelligently waived his Miranda
          rights. Preliminarily, we note:

               Regardless of whether a waiver of
               Miranda         is    voluntary,        the
               Commonwealth       must   prove     by    a
               preponderance of the evidence that the
               waiver is also knowing and intelligent.

               Miranda holds that “[t]he defendant
               may waive effectuation” of the rights
               conveyed in the warnings “provided the
               waiver is made voluntarily, knowingly
               and intelligently.” The inquiry has two
               distinct    dimensions.       First   the
               relinquishment of the right must have
               been voluntary in the sense that it was
               the product of a free and deliberate
               choice rather than intimidation, coercion
               or deception. Second, the waiver must
               have been made with a full awareness
               both of the nature of the right being
               abandoned and the consequences of the
               decision to abandon it.      Only if the
               “totality     of    the    circumstances
               surrounding the interrogation” reveals
               both an uncoerced choice and the
               requisite level of comprehension may a
               court properly conclude that Miranda
               rights have been waived.

          Commonwealth v. Cephas, 522 A.2d 63, 65 (Pa.
          Super. 1987) (emphasis in original).

     In the Interest of T.B., 11 A.3d 500, 505-506 (Pa. Super.
     2010).

                              ***




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     In examining the totality of circumstances, we also consider: (1)
     the duration and means of an interrogation; (2) the defendant’s
     physical and psychological state; (3) the conditions attendant to
     the detention; (4) the attitude of the interrogator; and (5) “any
     and all other factors that could drain a person’s ability to
     withstand suggestion and coercion.” Nester, 551 Pa. at 164,
     709 A.2d at 882.

Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012).

     The trial court offered the following analysis pertaining to Appellant’s

claim:

           In considering the factors that are part of the totality of
     the circumstances determination of the voluntariness of a
     confession, on the record the Court emphasized the physical and
     psychological state of [Appellant] as that was the focus of
     [Appellant’s] Motion in Limine and his rationale for suppressing
     the written statement. The Court stated on the record that it
     found the testimony of Trooper Sprague and Trooper Lear to be
     credible in their descriptions of [Appellant’s] behavior and
     mental state on February 2, 2013. N.T. p. 44. The Court also
     had the opportunity to assess [Appellant] and his demeanor.
     [Appellant] appeared hyper and had to be redirected by his
     attorney during his testimony.        [Appellant] had difficulty
     expressing his thoughts in a linear fashion on the stand and the
     Court found that his written statement with all of its scribbles,
     horrendous handwriting, and ambiguous content was consistent
     with [Appellant’s] observed behavior. Id. There is nothing in
     the record to suggest that based on the physical and
     psychological state of the accused that he was manipulated or
     coerced such that his written statement was not voluntarily
     given.

            While the Court focused its discussion on the record to the
     physical and psychological state of the accused when
     determining whether the confession was voluntary, the Court did
     consider the other factors that are part of the totality of the
     circumstances test. Regarding the duration of the interrogation,
     the Court heard evidence that [Appellant] verbally confessed
     after less than a half an hour in the interrogation room. At the


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      hearing there was testimony from the troopers in regards to
      their conduct during the interrogation. Both Trooper Sprague
      and Lear testified that they did not threaten or coerce
      [Appellant], nor did they offer [Appellant] leniency in exchange
      for his cooperation. Additionally, [Appellant] was given Miranda
      warnings twice. Considering all of the evidence presented at the
      hearing there was nothing to suggest that under any of the
      factors that the confession was not voluntary. Therefore, based
      on the totality of the circumstances, the Court found that the
      written statement was voluntary and denied [Appellant’s]
      request that it be excluded.

Trial Court Opinion, 1/21/14, at 8-9. We are constrained to agree with the

trial court’s determination in this regard.

      Our review of the record indicates that the totality of the facts support

the trial court’s decision to deny Appellant’s motion in limine seeking to

suppress his written confession. Appellant was present with the police at his

residence for several hours during the initial investigation of the robbery

prior to Appellant being taken to the police barracks. N.T., 9/25/13, at 4, 9-

10, 14.   After Appellant was transported to the police barracks, Appellant

was twice given his Miranda warnings prior to making his written

confession.   Id. at 5, 10-11, 14-16.         Approximately one-half hour after

arriving at the police barracks, Appellant verbally confessed to the robbery.

Id. at 7. Both troopers who handled the interrogation of Appellant testified

that Appellant was never threatened; was never coerced; was never offered

lieniency for cooperation; was never verbally or physically intimidated; was

never held in an uncomfortable position; and they did not yell at him. Id. at




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8, 18. The record further reflects that after Appellant verbally confessed to

police, they asked him to write his confession, and they left the room while

Appellant did so.    Id. at 18-19.   It was only after Appellant had difficulty

drafting a written statement that Trooper Lear assisted Appellant. Id. at 19-

20. Specifically, Trooper Lear offered the following testimony in this regard:

      Q.   And at the end, to clarify things, did you write a question
      and have him answer it?

      A.     Yes, sir.

      Q.     What was that question?

      A.     The question is, Did you go to MacDonald’s Pharmacy and
      hand a note to the cashier stating you have five seconds to put a
      Ritalin, comma, Adderall, comma, and Xanax in a bag, before I
      kill you and everybody here. This is not a game, comma, test
      me, explanation point.

      Q.     And did he respond to that?

      A.    Answer was yes, then he initialed it, and then signed it,
      and then put the time.

      Q.   At any point in the process did [Appellant] appear to not
      know what was going on?

      A.     No.

Id. at 20.

      In light of these facts, it is our conclusion that the trial court did not

err in denying Appellant’s motion in limine seeking to suppress his

confession to police. Therefore, Appellant’s contrary claim lacks merit.




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     Judgment of sentence affirmed.

     Judge Panella joins the Memorandum.

     Justice Fitzgerald Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2014




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