J-S23040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    :     IN THE SUPERIOR COURT OF
                                                :           PENNSYLVANIA
              v.                                :
                                                :
CURTIS KINGWOOD,                                :
                                                :
                   Appellant                    :         No. 3567 EDA 2014

           Appeal from the Judgment of Sentence December 12, 2014
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0002620-2013

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED May 19, 2017

        Curtis Kingwood (“Kingwood”) appeals from the judgment of sentence

imposed     following   his   conviction   of   second-degree   murder,   robbery,

conspiracy to commit robbery, carrying a firearm in public, and possession of

an instrument of crime (“PIC”).1 We affirm.

        The trial court summarized the relevant factual and procedural history

as follows:

               On September 11, 2011, Christopher Lee (“Lee”) was
        playing dice with Dontay Chestnut [] and Kenneth Perry [] on
        the sidewalk on the corner of Lindenwood Street and Jefferson
        Street. Later that night, at approximately 7:30 p.m., Faheem
        Davis (“Davis”) and [] Kingwood approached the men playing
        dice[,] and Davis pulled out a gun and demanded their money.
        A struggle ensued between Lee and Davis[,] during which Davis
        fired a single shot. Davis and [] Kingwood then fled the scene in
        a jeep. Lee sustained one gunshot to the chest[,] and was
        pronounced dead [] at approximately 8:10 p.m.




1
    See 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(c), 6108, 907(a).
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             On June 5, 2014, this court heard and denied Kingwood’s
      Motion to Suppress a statement[,] and the matter was continued
      to trial. On July 28, 2014, Kingwood elected to exercise his right
      to a jury trial[,] and pled not guilty to the above[-]listed
      charges. On August 4, 2014[,] the jury found Kingwood guilty of
      [m]urder of the [s]econd [d]egree (H2), [r]obbery (F1),
      [c]onspiracy (F1), [carrying a firearm in public] (M1), and PIC
      (M1)[,] and sentencing was deferred to December 12, 2014. On
      December 12, 2014, this court sentenced Kingwood to the
      mandatory term of life imprisonment on the murder charge. He
      received no further penalty on the remaining charges.          On
      December 19, 2014, this court received a Notice of Appeal[,]
      and on February 10, 2015, upon completion of the notes of
      testimony, Kingwood was served an Order directing him to file a
      concise statement of the matters complained of on appeal[,]
      pursuant to Pa.R.A.P. 1925(b). On May 13, 2015, this court
      received Kingwood’s [Pa.R.A.P.] 1925(b) response[.]

Trial Court Opinion, 12/15/15, at 1-2, 3 (paragraphs reordered, some

formatting omitted, footnote omitted).

      On appeal, Kingwood raises the following issue for our review: “Did

the trial court err by denying [Kingwood’s] Motion to suppress his statement

to police?” Brief for Appellant at 3 (some capitalization omitted).

             Our standard of review of a denial of suppression is
      whether the record supports the [suppression] court’s factual
      findings and whether the legal conclusions drawn therefrom are
      free from error. Our scope of review is limited; we may consider
      only the evidence of the prosecution and so much of the
      evidence for the defense as remains uncontradicted when read in
      the context of the record as a whole. Where the record supports
      the findings of the suppression court, we are bound by those
      facts and may reverse only if the court erred in reaching its legal
      conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en

banc) (citation omitted).




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      Kingwood contends that the suppression court erred by denying his

pretrial Motion to suppress the inculpatory statements that he made to

police while being detained.      Id. at 13.      Kingwood asserts that “the

Commonwealth failed to establish that [Kingwood’s] statement[s] w[ere]

voluntary, given that he was kept in the same room[,] where he had no

place to sleep for over forty hours[,] before he finally consented to give a

statement.” Id. at 22. Kingwood claims that “the delay was unjustified and

prejudicial because it led directly to [Kingwood’s] inability to refuse the

detective’s insistence that he agree to an interview and make a statement.”

Id.   Kingwood argues that the Commonwealth presented no evidence

demonstrating why it was necessary to leave Kingwood alone for that period

of time, in an interview room that did not have a bed, or why a detective

other than Detective [Omar] Jenkins [(“Detective Jenkins”)] could not have

interviewed Kingwood. Id. Kingwood contends that, during the 40 hours in

which he was detained, he was not permitted to communicate with family

members and was denied cigarettes, which also compromised his ability to

resist confessing to police. Id. at 24, 25. Kingwood asserts that Detective

Jenkins   was   confrontational   with   Kingwood,   called   him   a   liar,   and

interviewed him several times.     Id. at 25.    Kingwood claims that “his will

was overborne and [] his statement should have been suppressed because it

was not freely and voluntarily given.”     Id.   Finally, Kingwood argues that




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“the delay was unnecessary and that the length of the delay was

presumptively coercive ….” Id. at 27.2

      In the present case, the suppression court conducted a hearing

regarding     the   circumstances   surrounding   Kingwood’s   detention    and

subsequent confession to police.          The Commonwealth presented the

testimony of Detective Jenkins.      Kingwood presented no witnesses.       The

uncontracted evidence presented by the Commonwealth includes the

following.

      On September 11, 2011, the date of the shooting, Detective Jenkins

was assigned to lead the investigation of the murder of Lee. N.T. 6/5/14, at

11.   At 12:30 am on the morning of November 15, 2012, Kingwood was

brought by police to the homicide unit for questioning in relation to Lee’s

murder.      Id. at 22.   Because it was so late, Kingwood was placed in an

interview room, because Detective Jenkins was at home.         Id. at 23.   The

interview room is a rectangular room (approximately eight feet by twelve




2
  In support of his argument, Kingwood relies on Commonwealth v.
Davenport, 370 A2d 301 (Pa. 1977), and Commonwealth v. Duncan, 525
A.2d 1177 (Pa. 1987), for the proposition that the length of his detention,
without more, renders his confession involuntary. See Brief for Appellant at
25-26. Notably, between 1977 and 2004, our Supreme Court adhered to a
bright-line rule, under which any statement given to police more than six
hours after arrest, and before arraignment, was per se inadmissible. See
Davenport, 370 A.2d at 306. However, in Commonwealth v. Perez, 845
A.2d 779 (Pa. 2004), our Supreme Court determined that the per se rule
was not appropriate, and reverted to a totality of the circumstances test,
which we apply in this case. Perez, 845 A.3d at 785-87.


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J-S23040-17


feet), which locks from the outside, and has a rectangular table and a plastic

chair, both of which are bolted to the floor. Id. at 31-32.

        Later that morning, at approximately 10:00 a.m., Detective Jenkins

met briefly with Kingwood, and explained to Kingwood that Detective Jenkins

had court obligations that day, and would speak with him after court. Id. at

23-24.     At that time, Kingwood was permitted to use the restroom, and

provided with food to eat. Id. at 24. Detective Jenkins returned from court

at approximately 4:00 p.m. or 5:00 p.m., and reintroduced himself to

Kingwood.     Id. at 25.   At that time, Detective Jenkins provided verbal

Miranda3 warnings to Kingwood. Id. Kingwood did not appear to be sick,

ill or injured, and acted coherently.    Id. at 26.     Kingwood indicated to

Detective Jenkins that he understood his rights, and did not request an

attorney or to remain silent. Id. at 26, 27. Thereafter, they began to talk

about the shooting of Lee. Id. at 27.

        Kingwood initially denied any knowledge of the case, or the gun that

had been used in the shooting of Lee.     Id. at 28. Detective Jenkins then

briefly ended the interview to review his case notes. Id. When Detective

Jenkins returned at approximately 6:30 p.m., he confronted Kingwood with

case information, and Kingwood then began “to give a story as to the facts

of the case.” Id. Specifically, Kingwood identified “Chaney Hasan” as the

individual who had given him the gun.      Id. at 29.   Kingwood requested a


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


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cigarette, but Detective Jenkins denied his request because Detective

Jenkins is a non-smoker, and the interview room is small.         Id. at 30.

Kingwood also requested to use the restroom, which request was granted.

Id.    Detective Jenkins left the interview room and attempted to research

“Chaney Hasan,” and determined that no one by that name lived in the area,

or had come up in the investigation.      Id.   At approximately 10:00 p.m.,

Detective Jenkins returned to the interview room and told Kingwood that he

had been unable to substantiate the information that Kingwood had

provided.    Id. at 30-31.   At that time, Kingwood requested something to

drink, which request was granted.       Id. at 30.   Kingwood was left in the

interview room for the remainder of the night.        Id.   During the night,

Kingwood was observed sleeping in the interview room. Id. at 32.

       At approximately 8:15 a.m. on the morning of November 16, 2012,

Detective Jenkins returned to the interview room with food for Kingwood to

eat.   Id.   Kingwood was also permitted to use the restroom.      Id. at 33.

Detective Jenkins asked Kingwood if, after resting overnight, he had any

truthful information to provide, as the information he had provided thus far

had not been substantiated.     Id. at 32-33.   Kingwood declined to provide

further information, and Detective Jenkins thereafter left for court.   Id. at

33. Detective Jenkins returned from court at approximately 11:45 a.m., and

confronted Kingwood by telling him that “the story about Chaney Hasan was

totally false.”   Id. at 33-34.   Kingwood then began to provide further



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information to Detective Jenkins about the murder, including the exact

location of the shooting. Id. at 34. Kingwood explained that he was picked

up by “Heem” and another male in North Philadelphia, and that they drove

out to West Philadelphia, where the shooting had occurred.         Id. at 35.

Kingwood then began to talk about the incident.        Id.   Detective Jenkins

thereafter left the interview room to verify the information that Kingwood

had provided, and to determine who “Heem” was.               Id. at 36.    At

approximately 2:45 p.m., Kingwood was given something to eat and drink.

Id. at 38. At 4:45 p.m., Kingwood indicated to Detective Jenkins that he

was ready to give a full account of Lee’s murder, and thereafter admitted to

his involvement, and provided “names, dates, locations and[] factual

information on what occurred.”    Id. at 38-39.    Detective Jenkins asked

Kingwood if he would provide a formal written interview, and indicated that

Kingwood had time to think about it. Id. at 39.

     At approximately 7:00 p.m., Kingwood consented to a formal interview

by police, which would be transcribed and provided to the district attorney.

Id. at 39-40. King was provided with written Miranda warnings, which he

waived by written acknowledgment.      Id. at 40-42.    Thereafter, Kingwood

provided a formal accounting of the incident, and his involvement therein.

Id. at 45-52. According to Detective Jenkins, no one at the police station

had threatened or forced Kingwood to give a statement to police. Id. at 55.

Kingwood had prior arrests, and was precluded from lawfully carrying a



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firearm.   Id. at 20.     Kingwood did not present any evidence to the

suppression court regarding his age, education, or intelligence.

      Here, there is no question that Kingwood was detained for more than

40 hours. However, the duration of the detention is not controlling.        See

Perez, supra.    Rather, the question is whether, under the totality of the

circumstances, the confession was voluntary.

             When a court is called upon to determine whether a
      confession is voluntary and, hence, admissible at trial, it
      examines the totality of the circumstances surrounding the
      confession to ascertain whether it is the product of an essentially
      free and unconstrained choice by its maker. In making this
      inquiry, a court is not concerned with the issue of whether the
      substance of the confession is true.         Rather, a court is
      constrained to examine only whether an individual’s confession
      was the product of coercion, duress, or the use of other
      measures by interrogators deliberately calculated to overcome
      his or her free will.

Commonwealth v. Smith, 85 A.3d 530, 537-38 (Pa. Super. 2014).

      As our Supreme Court has explained,

      [t]he mere fact that there is some passage of time between
      when an accused is arrested and when he or she gives an
      inculpatory statement does not constitute grounds for
      suppression of the statement. Numerous factors should be
      considered under a totality of the circumstances test to
      determine whether a statement was freely and voluntarily made:
      the means and duration of the interrogation, including whether
      questioning was repeated, prolonged, or accompanied by
      physical abuse or threats thereof; the length of the accused’s
      detention prior to the confession; whether the accused was
      advised of his or her constitutional rights; the attitude exhibited
      by the police during the interrogation; the accused’s physical and
      psychological state, including whether he or she was injured, ill,
      drugged, or intoxicated; the conditions attendant to the
      detention, including whether the accused was deprived of food,
      drink, sleep, or medical attention; the age, education, and


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     intelligence of the accused; the experience of the accused with
     law enforcement and the criminal justice system; and any other
     factors which might serve to drain one’s powers of resistance to
     suggestion and coercion.

Commonwealth v. Martin, 101 A.3d 706, 724-25 (Pa. 2014) (citing

Perez, 845 A.2d at 785-87 (internal citations omitted)).   Also relevant to

the totality of the circumstances inquiry is whether the defendant provided

deceptive and misleading statements to police during questioning.       See

Commonwealth v. Johnson, 727 A.2d 1089, 1099 (Pa. 1999) (stating

that, a defendant who has the presence of mind to fabricate a story when

being questioned by police, “seriously undermines” a subsequent claim that

his statements were involuntary.).

     “The Commonwealth has the burden of proving by a preponderance of

the evidence that the defendant confessed voluntarily.” Commonwealth v.

Harrell, 65 A.3d 420, 434 (Pa. Super. 2013).        “The determination of

whether a confession is voluntary is a conclusion of law and, as such, is

subject to plenary review.”   Commonwealth v. Roberts, 969 A.2d 594,

599 (Pa. Super. 2009).      However, the underlying factual and credibility

determinations pertaining to the circumstances are owed deference and

must merely be supported by the record. Commonwealth v. Nester, 709

A.2d 879, 881 (Pa. 1998).

     Based on our review, we discern nothing from the suppression court

record that would establish, under the totality of the circumstances, that

Kingwood’s statements were in any way coerced or otherwise improperly


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obtained. Taking note of the factors set forth in Perez and other cases, we

conclude that Kingwood’s detention prior to his confession, although

prolonged, was not unduly long under the particular circumstances of this

case. Although Kingwood had been detained for more than 15 hours before

he was initially interviewed, the delay was due to (1) the fact that Kingwood

was brought in for questioning shortly after midnight, when the lead

detective on the case, Detective Jenkins, was at home; and (2) Detective

Jenkins’s preexisting court obligations, which prevented him from initiating

the interview with Kingwood until 4:00 p.m. or 5:00 p.m. on November 15,

2012.   Although Kingwood contends that another detective should have

interviewed him, the Commonwealth presented evidence that Detective

Jenkins had been the lead detective on the case for more than one year at

the time of Kingwood’s detention.            See Perez, 845 A.2d at 788-89

(rejecting   appellant’s   argument      that    another   detective     could    have

interviewed him, and noting that “[t]he detective explained                      at the

suppression hearing that[,] because he was the detective assigned to the

case,   he   alone   was   responsible     for   interviewing   …   appellant      ….”)

Questioning was also delayed for three hours on November 16, 2012, due to

Detective Jenkins’s additional preexisting court obligations.          Nothing in the

record indicates that these delays were aimed at overcoming Kingwood’s

will, or that he was subjected to coercive tactics. See id. at 789. Rather,

questioning was initiated by Detective Jenkins “as soon as feasible.” See id.



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        We further conclude that the questioning was not unduly repetitious,

as Kingwood initially provided false information to Detective Jenkins, leading

to further delays and further questioning when Detective Jenkins was unable

to substantiate the false information.      Notably, Kingwood’s election to

provide false information to detective Jenkins “seriously undermines” his

argument that his confession was not voluntary. See Johnson, 727 A.2d at

1099.

        Additionally, the record reflects that Detective Jenkins’s questioning

was not accompanied by physical abuse or threats thereof, nor is there any

evidence to suggest that Kingwood was detained for the purpose of forcing a

confession. Indeed, Kingwood was repeatedly advised of his constitutional

rights. The attitude exhibited by Detective Jenkins during the interrogation

was not offensive to constitutional norms.     Kingwood was not injured, ill,

drugged, or intoxicated. Kingwood was not deprived of food, drink, sleep, or

medical attention.4     Kingwood did not present any suppression hearing



4
  Although Kingwood was kept in an interview room without a bed, he cites
no authority establishing that this circumstance constituted a legal
impropriety, let alone a constitutional violation. See Commonwealth v.
Martin, 101 A.3d at 727. Additionally, although Kingwood claims that he
was deprived of cigarettes, the record indicates that he made only one
request for cigarettes, while he was being interviewed by Detective Jenkins,
which request was denied because Detective Jenkins is a non-smoker, and
the interview room was small. See N.T., 6/5/14, at 30. Based on the
record before us, we cannot conclude that the denial of Kingwood’s solitary
request for a cigarette, while being interviewed by a non-smoker in a
confined space, was a tactic designed to coerce a confession from Kingwood.
See Smith, 85 A.3d at 538.


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evidence concerning his age, education, and intelligence.5            However,

Kingwood had prior arrests, and was precluded from carrying a firearm.6

      In Bryant, the appellant argued that his inculpatory statement was

involuntary, and thus should not have been admitted into evidence because,

prior to giving the statement, he had been in custody for approximately 34

hours, kept in isolation, with little to eat or drink and no place to sleep, and

subjected to repeated interrogation to convince him that he would not leave

the police station until he confessed. Commonwealth v. Bryant, 67 A.3d

716, 724 (Pa. 2013). In rejecting appellant’s argument, the Bryant Court

noted that

      [a]lthough [a]ppellant was held for a lengthy period of time prior
      to giving his inculpatory statement, part of the reason for this
      was the enormous amount of evidence potentially relevant to the
      murders that the detectives were continuing to analyze. While
      [a]ppellant was in custody, he was given food and drink, he was
      allowed to use a bathroom, he was given the opportunity to
      sleep and did in fact sleep. No psychological pressure was
      placed on [a]ppellant during his time in custody. Prior to giving
      each of his statements, [a]ppellant had been read his Miranda
      rights and had signed off on them.

Bryant, 67 A.3d at 725.




5
 Nevertheless, from the record, we discern that Kingwood was 23 years old
at the time of his detention.
6
 Additionally, Kingwood failed to present any evidence to the suppression
court regarding his claims that he was not permitted to speak to family
members, or that Detective Jenkins had called him a “liar.” Accordingly, we
decline to consider these claims, as they are unsupported by the record
before us.


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      As in Bryant, Kingwood was given food and drink, allowed to use the

bathroom, was given the opportunity to sleep and did, in fact, sleep.         No

psychological pressure was placed on Kingwood during his time in custody.

Prior to giving each of his statements, he was provided with Miranda

warnings, and waived them.       Although Kingwood was held for a lengthy

period of time prior to giving his inculpatory statements, the delay was, in

part, caused by preexisting court obligations of Detective Jenkins, the lead

detective on the case, as well as Kingwood’s decision to provide false

information to Detective Jenkins, resulting in wasted time spent researching

the false information. Moreover, the duration of the interrogation was only

one of many factors for the trial court to consider. The trial court correctly

determined that the length of time was justified in light of the ongoing

criminal investigation, rather than a strategy to force a confession from

Kingwood.    See Trial Court Opinion, 12/15/15, at 9-10.       Mere passage of

time was not enough to render Kingwood’s statement involuntary in light of

an examination of the other relevant factors at play. See Bryant, 67 A.3d

at 725.

      Thus, based on the foregoing evidence and our standard of review, we

discern no abuse of discretion or error of law by the trial court in finding that

Kingwood’s statement to police was knowing, voluntary, and intelligent.

Accordingly, we affirm the trial court’s suppression Order, as well as

Kingwood’s judgment of sentence.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2017




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