J-E01005 -22
2022 PA Super 104
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESMOND SMITH :
:
Appellant : No. 983 EDA 2019
Appeal from the Judgment of Sentence Entered March 1, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010615-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE,
J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., McCAFFERY, J.
OPINION BY BENDER, P.J.E.: FILED JUNE 6, 2022
Appellant, Desmond Smith, appeals from the March 1, 2019 judgment
of sentence of 20 to 40 years’ incarceration, imposed after he was convicted
by a jury of rape (18 Pa.C.S. § 3121), involuntary deviate sexual intercourse
(“IDSI”) (18 Pa.C.S. § 3123), and sexual assault (18 Pa.C.S. § 3124.1). On
appeal, Appellant challenges the trial court’s denial of his pre-trial motion to
suppress, its rulings precluding him from presenting certain evidence, and the
discretionary aspects of his sentence. After careful review, we vacate
Appellant’s judgment of sentence and remand for further proceedings.
The trial court summarized the facts of Appellant’s case, as follows:
On September 27, 2015, Kevin Brown, the father of complainant
[E.M.,] was killed by masked men who came to his house in
Montgomery County. [E.M.], who was a witness to the events,
gave a statement to detectives on September 28, 2015. In the
course of that statement[,] she identified Appellant as one of the
masked men who came to her family’s home and was involved in
the killing of her father. She also provided information about the
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August 22, 2015, sexual assault which was the subject of the
charges in the instant trial.
On October 2, 2015, at 6:49 a.m., Montgomery County
[H]omicide [D]etective George Henry arrested Appellant at his
home in Philadelphia, pursuant to an arrest warrant. The arrest
arose from the September 27, 2015 homicide. Appellant waived
his right to go before a judicial authority in Philadelphia and
agreed to go straight to Montgomery County. He was taken to
the Montgomery County Detective Bureau where he was
intermittently interviewed by Detective Henry over the course of
about 11 hours, starting with waiver of his Miranda[1] rights at
8:42 a.m. and concluding around 7:51 p.m.
During the course of questioning, Appellant was asked about the
murder o[n] September 27, 2015, and about the August 22, 2015,
sexual assault of [E.M]. Appellant initially denied involvement in
either the murder or the sexual assault. By the end of the
questioning, he confessed to both the murder and the sexual
assault.
Appellant and [his] co-defendant[,] Naadir Abdul-Ali[,] were tried
in Montgomery County on the homicide. Appellant presented an
alibi defense, including phone[-]tracking data and video evidence,
and was acquitted. Abdul-Ali was convicted. On the day of the
verdicts in the homicide case, [E.M.] posted on Facebook
criticizing the alibi testimony and the acquittal, expressing her
anger[,] and insisting that Appellant was the person who killed her
father and that he was wrongfully acquitted.
At trial in this case, the Commonwealth presented evidence that
Abdul-Ali and [E.M.] were in a romantic relationship starting in the
summer of 2015. During that time period[,] she met Appellant
through Abdul-Ali, and was in his company three or four times.
On August 22, 2015, Abdul-Ali became angry with [E.M]. While
she was in the car with him[,] he became verbally and physically
abusive.
They drove to a CVS parking lot, where Abdul-Ali continued to
physically abuse and threaten [E.M.], including putting a gun to
the back of her head and threatening to kill her. Abdul-Ali then
ordered [E.M.] to perform oral sex on him in the car, during which
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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he made a video call to Appellant and displayed [E.M.] performing
oral sex.
Abdul-Ali then drove [E.M.] to Appellant’s house to force her to
have sex with Appellant, despite her pleading and refusals. Once
they arrived, he took her into Appellant’s bedroom. Abdul-Ali
ordered [E.M.] to disrobe and perform oral sex on him and
Appellant, then to have vaginal and anal intercourse with
Appellant, during which she was forced to have vaginal intercourse
with Abdul-Ali. During the course of the incident[,] Abdul-Ali
threatened [E.M.] with a gun and threatened or subjected her to
physical force, including forcing the gun into her mouth.
Appellant gave a statement in which he admitted to having oral,
attempted anal[,] and vaginal intercourse with [E.M.], asserting
that she had been “acting like a victim[.”]
Trial Court Opinion (TCO), 11/6/19, at 2-4 (citations to the record omitted).
Prior to Appellant’s trial for the rape of E.M., he filed a motion to
suppress his admissions to police regarding his sexual acts with E.M.
Specifically, Appellant averred that the Miranda warnings, provided at the
start of his interrogation, did not establish that he voluntarily waived his right
to counsel and to remain silent regarding E.M.’s sexual-assault allegations.
He reasoned that the Miranda warnings, given in the morning, were too far
removed from his inculpatory statements provided in the evening. Appellant
also averred that the warnings were insufficient because they only informed
him of his rights in connection to the homicide charges but made no mention
of E.M.’s sex-offense allegations. On December 20, 2017, a suppression
hearing was conducted, at the close of which the court denied Appellant’s
motion to suppress his statements to police.
Also prior to trial, the Commonwealth filed a motion to preclude
Appellant from admitting evidence that his inculpatory statements to police
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were coerced and false. Specifically, Appellant wished to admit alibi evidence
presented at his homicide trial — namely, surveillance video from SEPTA, and
cell phone location data — to show that his confession to being at the scene
of the murder was false. Appellant reasoned that the homicide alibi evidence
would show “that if the homicide portion of the confession was patently
unreliable, then the portions relating to the sexual assault [were] likewise
questionable[,] since they were taken on the same day, during the same
interrogation, by the same detectives.” Appellant’s Brief at 18. The trial court
ultimately granted the Commonwealth’s motion to preclude this evidence.
In a third, pre-trial evidentiary ruling, the court denied Appellant’s
request to be permitted “to present evidence, in the form of social media
posts, that E.M. had a motive or bias to fabricate allegations against
[Appellant] — or question E.M. regarding the same — at the trial in the matter
sub judice.” Id. The trial court denied Appellant’s motion to admit this
evidence.
Appellant and Abdul-Ali were tried together before a jury in December
of 2018. At the close of trial, Appellant was convicted of the above-stated
crimes. On March 1, 2019, the court sentenced him to two, consecutive terms
of 10 to 20 years’ incarceration for rape and IDSI. His offense of sexual
assault merged for sentencing purposes. Thus, Appellant’s aggregate
sentence is 20 to 40 years’ incarceration. Appellant filed a timely post-
sentence motion, which the court denied. He thereafter filed a timely notice
of appeal, and he also complied with the trial court’s order to file a Pa.R.A.P.
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1925(b) concise statement of errors complained of on appeal. The court filed
a Rule 1925(a) opinion on November 6, 2019.
On January 6, 2021, a three-judge panel of this Court issued a
memorandum decision vacating Appellant’s judgment of sentence and
remanding for a new trial. Specifically, the panel agreed with Appellant that
the trial court abused its discretion by denying his pre-trial motion to suppress
his statement to police. The Commonwealth filed a timely application for
reargument en banc, which we granted. Accordingly, the panel’s January 6,
2021 memorandum decision was withdrawn, and oral argument before this en
banc panel was heard on April 20, 2022.
We now review the following four issues presented by Appellant, which
we reorder for ease of disposition:
[I.] Did the trial court err and/or abuse its discretion when it
precluded evidence of a social media ([F]acebook) post made by
[the] complainant in which she exhibited extreme animosity
toward [A]ppellant and dissatisfaction with his acquittal in a prior
criminal case involving complainant, as that evidence is relevant
to complainant’s bias, motive to fabricate allegations against
defendant, and credibility generally?
[II.] Did the trial court err and/or abuse its discretion when it
precluded evidence that relates directly to the reliability (or lack
thereof) of inculpatory statements made by [Appellant] during a
police interrogation where the Commonwealth presented — and
heavily relied upon — evidence of [Appellant’s] inculpatory
statements regarding the sexual assault at trial?
[III.] Did the trial court err and/or abuse its discretion when it
denied [A]ppellant’s pre-trial motion to suppress a statement
made to police investigators where: [A]ppellant waived his
Miranda rights and provided a statement when police informed
him that he was being charged with homicide; and, [A]ppellant
was not re-advised of his Miranda rights, and did not waive those
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rights knowingly, intelligently, and voluntarily, when several hours
later police began to question defendant about a separate sexual
assault occurring on a different date than the homicide in a
different jurisdiction?
[IV.] Is the sentence imposed unduly harsh and excessive?
Appellant’s Brief at 6-7.
First, Appellant challenges the trial court’s ruling to preclude evidence
of the Facebook post that E.M. made after Appellant was acquitted of the
murder of her father. Initially, we observe that,
[t]he standard of review employed when faced with a challenge to
the trial court’s decision as to whether or not to admit evidence is
well settled. Questions concerning the admissibility of evidence
lie within the sound discretion of the trial court, and a reviewing
court will not reverse the trial court’s decision absent a clear abuse
of discretion. Abuse of discretion is not merely an error of
judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations
omitted).
In the Facebook post sought to be admitted by Appellant, E.M. made
disparaging remarks about Appellant, and insisted that he was guilty of
murdering her father, despite his acquittal for that crime. See TCO at 6
(quoting N.T. Trial, 12/18/18, at 15-16). Appellant wished to admit E.M.’s
Facebook post to show that she had a motive to fabricate her sexual-assault
allegations against him, in that she “sought to punish [Appellant] for her
father’s murder[,] notwithstanding the jury’s verdict….” Appellant’s Brief at
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47. The trial court denied Appellant’s motion to admit E.M.’s post. It provided
the following rationale for its decision in its opinion:
The court concluded that the posting lacked relevance and might
lead to jury confusion. Since [E.M.] reported the rape before
Appellant was acquitted of her father’s murder, Appellant’s
argument that the post was necessary to show bias or motive to
fabricate is unpersuasive. Thus, her expressive disagreement
with the verdict or possible factual determinations in that case
offered no probative value to the instant trial. Accordingly, the
court properly excluded the posting as not relevant.
Assuming, arguendo, that evidence of the post had any probative
value, it would be far outweighed by the risk of this trial being
subsumed by the alleged events of Appellant’s murder trial.
Appellant sought to import factual issues and assertions that
pertained only to the murder case, and hopefully to also influence
the jury to adopt its outcome. By contrast, the court sought to
have this case tried on its own merits, and [to] prevent it from
becoming a retrial of the homicide case. No curative instructions
would have been sufficient to safeguard this case from undue jury
confusion and prejudice.3 Accordingly, the court properly
concluded that the contents of the posting were far more
prejudicial than probative.
3 The expletives used in that post, while irrelevant, would
have served only to inflame the jury.
For whatever reason, the defense elected not to ask [E.M.] about
her feelings regarding the acquittal, an area of inquiry which the
court did permit, and to which the Commonwealth had agreed.
N.T.[,] 12/18/18, [at] 19-20. Such exploration would have
accomplished Appellant’s goal of eliciting that testimony, without
introducing the details of the post or the homicide trial. Of course,
if the complainant’s responses to such questioning contradicted
her prior expressions in the post, then the court could and would
have reconsidered its ruling on impeachment grounds.
TCO at 6-7.
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Based on the rationale set forth by the trial court, we discern no abuse
of discretion in its pre-trial ruling to preclude E.M.’s Facebook post. Therefore,
Appellant’s first issue is meritless.
Second, Appellant challenges the court’s pre-trial ruling to preclude him
from presenting alibi evidence that was admitted at his homicide trial.
Specifically, Appellant was prevented from introducing “surveillance video
from SEPTA and/or cell phone location data” that indicated he was not at the
scene of the homicide at the time it was committed. Appellant’s Brief at 41.
According to Appellant, this evidence proved “that his confession to being at
the scene of the murder was false, unreliable, and coerced[,]” and “if the
homicide portion of the confession was patently unreliable, then the portions
relating to the sexual assault are likewise questionable[,] since they were
taken on the same day, during the same interrogation, by the same
detectives.” Id. (citations to the record omitted). Appellant insists that he
should have been permitted to introduce this evidence, as it “is beyond cavil
that evidence which would raise a reasonable inference that could call the
veracity, accuracy, and reliability of these inculpatory statements into
question is relevant.” Id. at 42.
Even if we agreed with Appellant that the at-issue evidence was
relevant, he ignores that even relevant “evidence may be excluded ‘if its
probative value is outweighed by ... unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.’” Commonwealth v. Christine, 125 A.3d 394, 398
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(Pa. 2015) (quoting Pa.R.E. 403) (emphasis added). Here, “the jury had
already been informed that Appellant was acquitted of the murder after
presenting alibi evidence.” TCO at 8 (citing N.T., 12/19/18, at 160-61, 207).
Therefore, the video surveillance footage and cell phone location data, which
Appellant sought to introduce to prove that he had an alibi for the homicide,
was merely cumulative evidence of that already-established fact. See
Commonwealth v. Flamer, 53 A.3d 82, 88 (Pa. Super. 2012) (citations
omitted) (“We define cumulative evidence as ‘additional evidence of the same
character as existing evidence and that supports a fact established by the
existing evidence.’”). The trial court also had good reason for not permitting
this needlessly cumulative evidence, explaining that it “would conflate
unrelated issues of the two trials, and cause undue jury confusion.”
Id.
Again, the court’s “goal was to have the trial of this August 22, 2015 sexual
assault occur on its merits, and not let it devolve into a retrial of the
September 27, 2015 homicide for which Appellant was acquitted.”
Id.
Accordingly, the court precluded the alibi evidence Appellant sought to
introduce, and we discern no abuse of discretion in that decision.
In Appellant’s third issue, he challenges the court’s pre-trial ruling
denying his motion to suppress the inculpatory statements he made to police
during his interrogation on November 2, 2015. Appellant insists that his
statements were involuntary because he was arrested and provided with
Miranda warnings pertaining only to the murder of E.M.’s father. At no point
did the interrogating detectives advise Appellant that his statements could be
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used against him in prosecuting the sexual assault crimes, yet the detectives
questioned him about those offenses. Appellant also argues that the Miranda
warnings, provided at 8:25 a.m., were too far removed from his confession
regarding the sexual assault of E.M., provided at or after 5:40 p.m., to
establish that his statement was voluntarily, intelligently, and knowingly
given.
We begin by recognizing:
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous. Where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned
up).
In addition, our Court has explained:
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
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surrounding the giving of the confession. The Commonwealth
bears the burden of establishing whether a defendant knowingly
and voluntarily waived his Miranda rights.
When deciding a motion to suppress a confession, the touchstone
inquiry is whether the confession was voluntary. Voluntariness is
determined from the totality of the circumstances surrounding the
confession. The question of voluntariness is not whether the
defendant would have confessed without interrogation, but
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. 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, 433-34 (Pa. Super. 2013) (cleaned
up).
Here, at the suppression hearing, the Commonwealth presented the
testimony of Detective Henry. N.T. Hearing, 12/20/17, at 4. He testified that
on November 2, 2015, he executed a warrant for Appellant’s arrest for the
homicide of E.M.’s father. Id. at 5. Appellant was taken into custody at his
home in Philadelphia at 6:49 a.m., and advised that he was being arrested for
the homicide. Id. at 5, 8. Appellant was then transported to the Montgomery
County Detective Bureau. Id. at 6. Once there, he was given Miranda
warnings at approximately 8:25 a.m. Id. at 9. The Miranda warnings were
set forth on a written form, which stated that Appellant was being investigated
for homicide. Id. at 7. He was at no point notified, on the written form or
verbally by Detective Henry, that he was also suspected of sexually assaulting
E.M. Id. Appellant signed the waiver form. Id. at 11.
Between 9:27 a.m. and 10:56 a.m., Detective Henry recorded a formal
statement by Appellant. Id. at 12. Appellant was asked various questions,
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including whether he ever had sex with E.M. Id. He denied that he did. Id.
at 15.2 Detective Henry then paused Appellant’s statement from 10:56 a.m.
to 2:56 p.m. Id. During the four-hour break, however, Detective Henry
claimed that he continued to question Appellant “off-the-record” about various
topics, including the sexual assault of E.M. Id. at 17. Appellant’s statement
resumed at 2:56 p.m., and he was questioned exclusively about E.M.’s assault
allegations until approximately 3:05 p.m. Id. at 20. During that questioning,
Appellant admitted to having oral sex with E.M. See N.T. Trial, 12/19/18, at
153.3 He also admitted that he heard Abdul-Ali tell E.M. not to tell anyone.
Id. at 154.
At that point, another detective, disguised as a DNA lab analyst, entered
the interrogation room and falsely told Appellant that his DNA had been found
at the homicide scene. N.T. Hearing at 20. Detective Henry then paused
Appellant’s statement from 3:35 p.m. until 5:39 p.m. Id. at 23. During that
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2 Detective Henry testified that he questioned Appellant about the sex offenses
against E.M. to establish Appellant’s “relationship with the co-defendant and
also if he knew the [homicide] victim or the victim’s daughter[, E.M.]” Id. at
22.
3 We recognize that in In re L.J., 79 A.3d 1073, 1087 (Pa. 2013), our Supreme
Court held that our scope of review from a suppression ruling is limited to the
evidentiary record that was created at the suppression hearing. Here,
Appellant’s full statement was admitted into evidence at the suppression
hearing. See N.T. Hearing at 31. However, it was not read into the record
during Detective Henry’s testimony in that proceeding, as it was during the
detective’s trial testimony. Because Appellant’s statement is not contained in
the certified record before us on appeal, we refer to Detective Henry’s trial
testimony to discern the contents of Appellant’s statement to police. This does
not violate the rule announced in In re L.J., as the trial court had Appellant’s
full statement before it when ruling on his suppression motion.
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break, Appellant was again questioned “off the record” about various topics,
including the sexual assault of E.M. Id. at 23, 25. When the formal statement
resumed at 5:39 p.m., the first questions asked by Detective Henry were
about the sexual offenses alleged by E.M. Id. at 25. Appellant at some point
thereafter admitted that he had vaginal intercourse with E.M., and that he had
attempted to have anal intercourse with her, as well. N.T. Trial, 12/19/18, at
158.
At the close of the suppression hearing, the trial court denied Appellant’s
motion to suppress his statements about the sexual offenses committed
against E.M. Notably, however, the court offered no factual findings, nor any
clear legal determinations. Instead, the court stated only the following:
THE COURT: I’ll be as specific as I can. I’ll deny the motion to
suppress in that Miranda … has taken us [in] so many directions.
I know what I’m looking for as far as [Appellant’s] not being
advised what he’s questioned about. I understand [what] that
means. I guess it’s a pointed issue. When he starts saying
someone is giv[ing] a statement [and] that they have weighed
[sic] their rights and want to speak and take the train down the
track. I’m not ready to find those facts here, … and I deny the
motion at this time.
Id. at 37.
Appellant now contends that the trial court’s ruling to admit his
inculpatory statements was error. He insists that his statements regarding
the sex offenses committed against E.M. were involuntary because the
Miranda warnings provided by Detective Henry made no mention of those
offenses and pertained solely to the homicide crime. Additionally, he claims
that the warnings were stale and too far removed from his inculpatory
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statements to demonstrate their voluntariness. In support of his arguments,
Appellant relies primarily on two cases, Commonwealth v. Riggins, 304
A.2d 473 (Pa. 1973), and Commonwealth v. Wideman,
334 A.2d 594 (Pa.
1975). In Riggins, our Supreme Court explained:
There is no prophylactic rule that a suspect must be re[-]warned
of his constitutional rights each time custodial interrogation is
[renewed]. Instead, we must view the totality of circumstances
in each case to determine whether such repeated warnings are
necessary.
Pertinent to such an inquiry are the length of time between the
warnings and the challenged interrogation, whether the
interrogation was conducted at the same place where the
warnings were given, whether the officer who gave the warnings
also conducted the questioning, and whether statements obtained
are materially different from other statements that may have been
made at the time of the warnings.
Riggins, 304 A.2d at 477-78 (quoting Commonwealth v. Bennett,
282 A.2d
276, 280 (Pa. 1971)).
The Riggins Court ultimately held that the police in that case had been
required to re-advise Riggins of his Miranda rights, based on the following
circumstances:
Seventeen hours elapsed between [Riggins’] initial Miranda
advisement and his oral confession; the warnings were given in
the police car, while the interrogation was conducted at the Police
Administration Building in downtown Philadelphia; the officers
who gave the warnings had no further contact with [Riggins] once
he arrived at the Administration Building and the questioning
began…[; and] the oral confession was obviously ‘materially
different’ from the denials [Riggins] had given, regarding the
robbery and murder, for the 17 hours preceding its elicitation.
Id. at 478.
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Analyzing the Bennett factors several years later in Wideman, the
Court again concluded that officers should have re-advised Wideman of his
constitutional rights. There, twelve hours had elapsed between the Miranda
warnings and Wideman’s confession; the warnings and confession occurred in
different rooms of the Police Administration Building; the officers that provided
Wideman’s Miranda warnings were not present when he confessed; there
was a material difference between the statements that Wideman made in the
morning after the Miranda warnings were provided and his confession
provided that evening; and the continuity of the interrogation was broken on
several occasions, including when Wideman was permitted to sleep for 3½
hours. Wideman, 334 A.2d at 599. Accordingly, the Wideman Court held
that Wideman “should have been re[-]advised of his Miranda rights prior to
the interrogation session during which the complained of statement was
elicited.”
Id. Because he was not, his confession was inadmissible.
Id.
In the present case, Appellant argues that,
[a]s in Riggins and Wideman, there was a “material difference”
between the statements given to police shortly after a reading of
the warnings, and those hours later. Namely, [Appellant] initially
denied involvement in the sexual assault, but “[b]y the end of
questioning, he confessed to both the murder and the sexual
assault.” [TCO at] 2-3 (citing written statement motion Exhibit C-
1). In addition, [Appellant] was told he was being investigated
for a September murder in Montgomery County (that he was later
acquitted of because he had an alibi) when he waived his Miranda
rights. However, … both afternoon sessions of the interrogation
opened with questions related exclusively to the August sexual
assault in Philadelphia. … [T]his is a materially different line of
questioning.
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As in Wideman, the continuity of interrogation was broken on
several occasions including a four[-]hour break, and a subsequent
two hour break, in the interrogation.
Accordingly, pursuant to the Supreme Court’s decisions in
Wideman and Riggins, [Appellant] should have been readvised
of his Miranda rights prior to the afternoon interrogation sessions
relating to the sexual assault.
Appellant’s Brief at 39-40.
In response, the Commonwealth first posits that Appellant’s homicide
crime and the sexual assault of E.M. were sufficiently similar, so as to notify
Appellant that he would likely be questioned about both, despite that he was
only notified of the homicide charge in the Miranda warnings. Next, the
Commonwealth insists that the Bennett factors support the court’s denial of
suppression. It reasons that Appellant’s interrogation was not unduly lengthy,
and “the afternoon portions of [Appellant’s] statements were not ‘materially
different’ such that new warnings were required.” Commonwealth’s Brief at
21. The Commonwealth also argues that “[a]lthough [Appellant] was
appropriately afforded breaks to smoke and use the restroom, the questioning
was not interrupted or paused for any significant length of time. Nor was
there a change in location such that the initial Miranda waiver would not
reasonably be understood to continue in effect.” Id. at 22.
Moreover, the Commonwealth rejects Appellant’s attempt to construe
his interrogation as involving “three distinct written statements separated by
hours of total cessation of questioning….” Id. at 23. Instead, it claims the
interrogation should be “more appropriately viewed as one session of oral
questioning, during which [Appellant’s] responses were periodically
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memorialized in writing.” Id. It asserts that there was a “clear continuity of
interrogation[,]” id. at 20, and it characterizes all breaks and interruptions as
insignificant, including the interjection by the detective pretending to be a
DNA lab technician. The Commonwealth reasons that this interruption was
immaterial, as it “concerned the murder charges against [Appellant,] and he
concedes that he was fully aware from the outset that he was being questioned
about those charges.” Id. Thus, the Commonwealth asks this Court to find
that the Bennett factors support the trial court’s decision to deny Appellant’s
motion to suppress his statement.
We cannot properly review the suppression court’s decision, and assess
the arguments made by the parties, based on the record currently before us.
Pennsylvania Rule of Criminal Procedure 581 states that, at the conclusion of
a suppression hearing, “the judge shall enter on the record a statement of
findings of fact and conclusions of law as to whether the evidence was
obtained in violation of the defendant’s rights, or in violation of these rules or
any statute, and shall make an order granting or denying the relief sought.”
Pa.R.Crim.P. 581(I) (emphasis added). Our Supreme Court has “stress[ed]
… the essential purposes served by the Rule, and … disapprove[d] of non-
compliance with its unambiguous mandate.” Commonwealth v. Millner,
888 A.2d 680, 688 (Pa. 2005). The Millner Court explained that,
it is often the case (for example, where a waiver trial occurs) that
the suppression judge is different from the trial judge yet, if there
is a conviction, it will be the trial judge who will be responsible for
preparation of the Rule 1925 opinion for appeal. Thus, in cases
where suppression is denied, a trial occurs, and a conviction
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ensues, and the defendant seeks to challenge the suppression
ruling, the timely and specific ruling the suppression judge is
required to enter under Rule 581(I) is essential to ensuring that
the trial judge and the appellate courts will have a record upon
which they can timely and meaningfully discharge their
responsibilities.
Id. at 689.
Here, the suppression judge wholly failed to satisfy the requirements of
Rule 581(I). That judge then left the bench and a different judge presided
over Appellant’s trial. In the court’s Rule 1925(a) opinion, it offers no
discussion of this issue, simply referring this Court to the portion of the record
containing the above-quoted ruling by the suppression judge. See TCO at 4
n.2. Accordingly, we have no factual findings or legal determinations by any
trial judge — let alone findings of fact by the suppression judge who actually
viewed the witnesses and ruled on the issues raised herein — to enable us to
complete our task of “determining whether the suppression court’s factual
findings are supported by the record and whether the legal conclusions drawn
from those facts are correct.” Smith, 164 A.3d at 1257. Clearly, there are
factual issues to be determined in this matter. For instance, a finding must
be made about whether Appellant was aware he could be questioned about
the assault, even though the Miranda warnings pertained only to the
homicide. Additionally, findings of fact are necessary regarding the parties’
disputes on several of the Bennett factors, including whether Appellant’s
afternoon statements were materially different from his initial remarks to the
detectives, what transpired during the hours-long breaks in Appellant’s written
statement, and the impact of interruptions on the continuity of Appellant’s
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statement (including when a detective pretended to be a DNA analyst). Thus,
remanding for the trial court to make such factual findings is necessary.
Moreover, because the instant trial judge did not have the benefit of viewing
the witnesses firsthand, a whole new suppression hearing is warranted.
Accordingly, we vacate Appellant’s judgment of sentence and remand
for a new suppression hearing.4 At the close thereof, the court shall issue
specific findings of fact and conclusions of law. If the court decides to deny
Appellant’s motion to suppress, no new trial will be necessary, and the court
may reimpose Appellant’s judgment of sentence.5 If the court decides to grant
Appellant’s motion to suppress, it shall also grant him a new trial.
Judgment of sentence vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
President Judge Panella and Judges Lazarus, Stabile and Kunselman join
this opinion.
Judge MCCaffery files a Concurring/Dissenting Opinion in which Judges
Bowes, McLaughlin and King join.
____________________________________________
4 In light of our vacating Appellant’s present judgment of sentence, we decline
to address his fourth issue challenging the discretionary aspects of his
sentence at this time.
5 Appellant may then file an appeal raising any challenges to the suppression
court’s ruling and/or discretionary-aspects-of-sentencing claim(s).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2022
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