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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., and McCAFFERY, J.
CONCURRING/DISSENTING OPINION BY McCAFFERY, J.:
FILED JUNE 6, 2022
I agree with the Majority’s disposition of Appellant’s challenges to the
preclusion of both his homicide-trial alibi evidence and E.M.’s Facebook social
media post. However, I respectfully disagree with the Majority’s conclusion
that we cannot review the suppression ruling on the basis of the record before
us. Instead, I would determine that we can review the ruling, no relief is due,
and thus we should reach Appellant’s last issue, concerning sentencing. I
concur in part and dissent in part.
I briefly reiterate the facts, in chronological order. In the summer of
2015, the victim, E.M., and Naadir Abdul-Ali (Co-Defendant) were in a
romantic relationship. Trial Ct. Op., 11/6/19, at 3. On August 22, 2015,
Appellant and Co-Defendant committed the sexual assault against E.M., at
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Appellant’s home in Philadelphia. Id. at 3-4. Approximately five weeks later,
in Montgomery County, on September 27th, masked men entered E.M.’s
house and killed her father, Kevin Brown. Id. at 2. In talking with police,
E.M. identified Appellant as one of the masked intruders, and told them about
the August 22nd rape. Id.
As the Majority points out, a suppression court shall enter, on the record
at the conclusion of a suppression hearing, “a statement of findings of fact
and conclusions of law as to whether the evidence was obtained in violation
of the defendant’s rights, . . . these rules or any statute[.]” Maj. Op. at 17,
quoting Pa.R.Crim.P. 581(I). Here, the suppression court did not preside at
trial,1 and the subsequently-appointed trial court did not address Appellant’s
suppression issue its Pa.R.A.P. 1925(a) opinion. Nevertheless, I would
conclude we can assess the suppression court’s on-the-record statement in
the context of the evidence presented, the parties’ arguments, and the court’s
other statements at the hearing.
I summarize the interrogation. Over the course of Appellant’s
interrogation on October 2, 2015, Detective Gregory Henry took three written
statements, each following a period of formal questioning. The first interview
began at 9:27 a.m., when Detective Henry advised Appellant that he was
under arrest, and was being questioned, for the homicide of Brown on
1 The suppression judge, the Honorable Roger Gordon, retired from the bench.
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September 27th. N.T. Trial, 12/19/18, at 136.2 Appellant stated he was at
home with friends and his family almost that entire day. Id. at 139-40.
Appellant was then asked whether he knew Co-Defendant — who was also a
suspect — and he responded he had known him “since [they] were little,” and
they “were close.” See id. at 141-42. Detective Henry asked whether
Appellant knew Co-Defendant’s girlfriend. Id. at 141. Appellant admitted he
met her “a few times” but could not remember her name, as E.M. and Co-
Defendant had recently broken up. Id. at 143-44. E.M. had previously been
in Appellant’s bedroom, along with Co-Defendant, but Appellant denied having
sexual contact with her. Id.
During a four-hour break, Detective Henry talked with Appellant “off the
record,” and asked Appellant how E.M. would have known him. N.T.,
12/19/18, at 147, 150-51. Formal questioning resumed at 2:56 p.m., where
the detective asked Appellant if he “want[ed] to clear up the incident
involving” Co-Defendant and E.M. Id. at 152. Appellant replied, “I want to
tell the truth about that,” and stated the following. Id. Co-Defendant and
E.M. came to his house; Co-Defendant “was all pissed off[ and] wanted her to
do all this wild stuff.” Id. at 153. Co-Defendant had sex with E.M. in
Appellant’s room; E.M. also performed oral sex on Appellant. Id. at 153.
2 See Maj. Op. at 12 n.3 (noting Appellant’s full statement was admitted into
evidence at the suppression hearing, but is not a part of certified record before
this Court, and thus referring to the portion of Detective Henry’s trial
testimony, where statement was read into the record).
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Appellant heard Co-Defendant tell E.M. not to tell anyone about this. Id. at
154. Appellant also stated that “[i]t looked like [Co-Defendant] had a jawn,”
meaning a weapon, in his bookbag. Id. at 153. This statement ended at 3:35
p.m. Id. at 155.
Formal questioning resumed at 5:39 p.m., and Detective Henry again
asked Appellant about the sexual incident. N.T., 12/19/18, at 156. At this
time, Appellant stated Co-Defendant’s bookbag was empty and he did not
know if there was a weapon. Id. at 156-57. When asked if he saw Co-
Defendant point a gun at E.M.’s head, Appellant responded, “I saw him move
closer to her with the bag. That meant something. . . . The bag didn’t affect
me as much as it affected her.” Id. at 157. While E.M. performed oral sex
on Co-Defendant, Co-Defendant told Appellant to insert his penis into her
anus. Id. at 158. Appellant instead “[inserted] it in her vagina.” Id. This
concluded the questions about the sexual assault. Id.
At the suppression hearing, Appellant solely argued that at no point
during the interrogation did Detective Henry inform him he was being
investigated for the sexual assault of E.M.3 See N.T., 12/20/17, at 12-14, 25.
3 Appellant’s suppression motion raised additional claims, that: he was given
a Miranda warning at 8:42 a.m. and interrogated for more than 12 hours; he
made the incriminating statement “near the end of the [12] hour
interrogation;” the statements he made “closer to the Miranda warnings
[were] completely different from the statements [he] gave . . . later[;]” and
the Miranda warnings “became stale or too remote.” Appellant’s Motion to
Suppress, 6/28/17, at 2-5 (unpaginated).
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When asked why not, Detective Henry consistently responded: (1) he was
investigating the homicide, which was the basis of Appellant’s arrest; and (2)
in so doing, the detective wanted to determine whether Appellant knew E.M.,
as well as the relationship between Appellant and Co-Defendant. Id. at 13,
22, 30. Detective Henry explained: “[E.M.] identified [Appellant] as one of
the actors [in the sexual assault.] We were establishing how she might have
known him[.]” Id. at 30.
In closing argument, Appellant contended the suppression court “[must]
look at the timeline[:]” he was arrested at 6:49 a.m., waived his Miranda
rights, but was “never advised” he was being investigated for a sexual assault.
N.T., 12/20/17, at 32. The suppression court acknowledged that individuals
questioned about one crime may talk about other crimes:
Well, now that the facts are flushed out, you can tell me . . . I
bring a guy in for crime Y, and in order to clear [himself] up, he
wants to talk about why he’s not guilty of crime Y[. H]ow far the
tree can he go down and ask him about, well, [I]f you didn’t do
crime Y, the man will voluntarily tell me why he didn’t [sic]. And
while doing so, he talks about crime X.
Where am I going, talk to me.
Id. at 32.
Appellant responded that for six hours, he denied committing the
homicide, “[t]hen we have four hours of radio silence, where we don’t know
what happens[,]” and following this break, “the first thing” the detectives
asked him was about the sexual assault. N.T., 12/20/17, at 33. Appellant
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concluded, “There’s no way [he] realized he had a right not to answer
questions [about the] sexual assault.” Id. at 34.
The Commonwealth responded that in Commonwealth v. Moss, 543
A.2d 514 (Pa. 1988), the “Pennsylvania Supreme Court noted that it has never
held that a suspect must be informed of each and every crime for which is he
under investigation.” N.T., 12/20/17, at 35. The Commonwealth also cited
Commonwealth v. Green,
683 A.2d 659 (Pa. Super. 1996), in which the
defendant broke into a police officer’s apartment, took the officer to a remote
area, and shot him twice in the head. N.T., 12/20/17, at 36; see Green,
683
A.2d at 660-61. Detectives questioned the defendant about the subsequent
theft of a vehicle, did not tell him about the underlying homicide, but
nevertheless asked the defendant whether he knew the officer. 4 N.T.,
12/20/17, at 36. We note that on appeal, this Court affirmed the denial of
the defendant’s motion to suppress the statement. Green,
683 A.2d at 666.
4 In its argument, the Commonwealth omitted details about the Green case.
See N.T., 12/20/17, at 36. We note that in Green, the defendant fled from
Pennsylvania to Florida, stealing a van in North Carolina in the course thereof.
Green,
683 A.2d at 661. He was arrested in Florida.
Id. Meanwhile, a
missing persons report about the victim police officer was released nationwide.
Id. A Florida detective met with the defendant in a Florida prison, but did not
indicate he would ask questions about the missing Pennsylvania officer.
Id.
The defendant “claim[ed] he thought the questioning would be limited to the
[van] theft.”
Id. The detective asked if the defendant knew the officer,
pointing out they were from the same town, and the defendant had left that
area around the same time the officer was reported missing.
Id. The
defendant subsequently made incriminating statements relating to the officer.
Id. The defendant’s motion to suppress those statements was denied by the
trial court, and on appeal, this Court affirmed.
Id. at 662, 666.
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At the suppression hearing in the instant case, the Commonwealth argued the
facts of this case were analogous to those in Green — here, Detective Henry
“brought in [Appellant] to talk about the homicide,” but then asked him about
the sexual assault of E.M. in order to “corroborat[e] the fact [E.M.] knew
[Appellant], and that’s how she could ID him from the night of the murder.”
N.T., 12/20/17, at 37. The Commonwealth concluded the detectives could
properly ask “about other crimes,” as permitted by Green and Moss. Id.
It is at this juncture that the suppression court announced the ruling
that is quoted by the Majority:
I’ll be as specific as I can. I’ll deny the motion to suppress in that
Miranda . . . has taken us so many directions [sic]. I know what
I’m looking for as far as a defendant not being advised
what he’s questioned about. I understand that means. [sic]
I guess it’s a pointed issue. When he starts saying someone is
given a statement that they have [waived] their rights and want
to speak and take the train down the track. I’m not ready to find
those facts here, [Appellant’s counsel], and I deny the motion at
this time.
See N.T., 12/20/17, at 37 (emphasis added); Maj. Op. at 13.
While the suppression court’s above statement, when read in isolation,
could be deemed incomplete, I would conclude we may review the statement
in the context of the evidence presented, the parties’ arguments, and the
suppression court’s other statements at the hearing. I note that in
Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002) (en banc),
the trial court similarly did not state its findings of fact on the record at the
conclusion of the suppression hearing.
Id. at 1200. Nevertheless, this Court
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reviewed the trial court’s Rule 1925(a) opinion, which addressed the
suppression issue. Id. We then reached the merits of the defendant’s
suppression challenge, based “[u]pon consideration of [the] circumstances as
documented in the record of the suppression hearing[.]”
Id. at 1202.
In this appeal, I would conclude, analogously, that the suppression
court’s lack of a more formal or complete statement is not fatal to our review.
See Reppert, 814 A.2d at 1202. The Majority is not granting a new
suppression hearing on the basis of any merit to Appellant’s claims, but rather
on a determination that we lack sufficient reasoning from the suppression
court. I disagree with the Majority that, under the particular circumstances
presented, the suppression court’s brief statement is such a fatal flaw
requiring the grant of a new suppression hearing.
As stated above, the sole issue Appellant developed at the hearing was
the lack of notice that he was also being investigated for the sexual assault.
The suppression court heard the parties’ extensive arguments on this point
and denied Appellant relief. See N.T., 12/20/17, at 37 (“I know what I’m
looking for as far as a defendant not being advised what he’s questioned
about.”). For the foregoing reasons, I disagree that a remand is necessary
for the trial court to decide, anew, “whether Appellant was aware he could be
questioned about the [sexual] assault, even though the Miranda warnings
pertained only to the homicide.” See Maj. Op. at 18. Instead, I would
conclude we may find record support for the suppression court’s ruling.
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Furthermore, I would affirm the suppression court’s finding on this issue.
The Commonwealth correctly argued, and Appellant did not dispute, that in
Green, this Court “note[d] that the United States Supreme Court has held
that there is no requirement that a suspect have knowledge of the specific
crimes about which he or she is to be questioned.” See Green, 683 A.2d at
664, citing Colorado v. Spring,
479 U.S. 564 (1987). See also
Commonwealth v. Travaglia,
467 A.2d 288, 293 (Pa. 1983) (Miranda does
not require that a suspect be provided information as to the crime under
investigation, although this Court has held “a suspect must have ‘an
awareness of the general nature of the transaction giving rise to the
investigation,’ in order to make an intelligent and understanding waiver of his
rights”).
In any event, in Green, as stated above, the defendant was arrested
for the theft of a van. Green, 683 A.2d at 661. Upon questioning the
defendant about this offense, the detective did not inform him he would also
ask questions about the missing Pennsylvania police officer.
Id. at 661.
Nevertheless, we held the defendant’s Miranda waiver was knowing and
intelligent, where the theft of the van “was directly related to” the homicide
and the defendant’s flight from Pennsylvania.
Id. at 664-65.
Here, the two crimes — the sexual assault and homicide — were not
unrelated incidents with no common connection, but instead were closely
linked, as they both involved E.M. It was E.M. who identified Appellant as one
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of the intruders. E.M. was also the romantic partner of Co-Defendant, another
suspect in the homicide. Indeed, the sexual assault of E.M. provided the
impetus for the homicide. At the suppression hearing, the detective testified
he wanted to establish how Appellant and E.M. knew each other, as well as
how Appellant and Co-Defendant knew one another. See N.T., 12/20/17, at
13, 22-23, 30. Accordingly, I would affirm the suppression court’s finding as
to the particular point raised at the suppression hearing — whether Appellant
had “an awareness of the general nature of the transaction giving rise to the
investigation.” See Travaglia, 467 A.2d at 293; Green,
683 A.2d at 660-
61.
Furthermore, I disagree with the Majority that we should remand for
findings of fact as to other issues: whether Appellant’s afternoon statements
were materially different from his initial remarks; what transpired during the
breaks between his written statements; and the continuity of Appellant’s
statements. See Maj. Op. at 18-19. Although he briefly referred to these
points in his suppression motion, Appellant did not articulate any of these,
much less develop them, at the hearing. On appeal, Appellant does not raise
any claim that he was precluded from doing so. I disagree with the Majority
that the suppression court was deficient in not addressing these specific
factual issues, and instead would conclude Appellant simply did not raise them
at the hearing.
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To the extent Appellant also implied, at the suppression hearing, that
the Miranda warnings were stale or too remote with respect to his statements
about the sexual assault, I would conclude no relief is due. See N.T.,
12/20/17, at 32 (“You have to look at the timeline. [Appellant was] arrested
at 6:49 a.m. [and] waive[d] Miranda. And as it relates to a [sexual assault],
he’s never advised he’s a suspect, being investigated, being charged.”). I
incorporate the Majority’s discussion of the factors set forth in
Commonwealth v. Bennett, 282 A. 2d 276 (Pa. 1971), for evaluating
whether repeated Miranda warnings are necessary. See Maj. Op. at 14. I
also reference the Majority’s summary of Commonwealth v. Riggins,
304
A.2d 473 (Pa. 1973), which stated, in part, “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.”
See Maj. Op. at 14.
Additionally, I note that in Commonwealth v. Garland, 63 A.3d 339
(Pa. Super. 2013), this Court stated: “[V]oluntary statements by an accused,
given more than six hours after arrest when the accused has not been
arraigned, are no longer inadmissible per se. Rather, regardless of the time
[the statements were made], courts must consider the totality of the
circumstances surrounding the confession.”
Id. at 343 (citation omitted).
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“[T]he appellate courts have expressly rejected the position that the length of
time is determinative.” Id.
As the Majority points out, the Riggins Court held that under the
following facts, police were required to readvise the defendant of his Miranda
rights: the passage of 17 hours from the initial Miranda warning and the
confession; the fact that the warning was given in a police car by police
officers, while the interrogation was conducted at the police station by
different officers; and the confession was “materially different” from the
defendant’s initial denials of involvement. See Riggins, 304 A.2d at 478;
Maj. Op. at 14.
I would conclude the facts presented in this case are distinguishable.
Here, it is not disputed that Detective Henry advised Appellant of his Miranda
rights at the police station, which is also where the questioning occurred, and
the same detective interviewed Appellant. See N.T., 12/20/17, at 6.
Appellant was advised of his Miranda warning at 8:42 a.m., and was formally
interviewed in three blocks of time: (1) 9:27 a.m. to 10:56 a.m.; (2) 2:56
p.m. to 3:35 p.m.; and (3) finally, beginning at 5:39 p.m.. 5 See Appellant’s
Motion to Suppress 3; N.T., 12/19/18, at 136, 146, 152, 155. Although
Appellant initially denied having sexual contact with E.M., he subsequently
volunteered that he “wanted to tell the truth about that,” and admitted he and
5 Neither the suppression hearing nor trial transcript indicates when the third
period of questioning ended.
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Co-Defendant both had sex with the victim. Id. at 143, 152-53, 158.
Appellant has made no claim of coercion by the police detectives. Under the
totality of the circumstances, I would conclude the suppression court did not
err in denying Appellant relief on a claim that the Miranda warning was stale
or too remote to remain valid. See Riggins, 304 A.2d at 477. See also
Garland, 63 A.3d at (defendant’s statement, made within five hours from the
time he was brought to police station, was voluntarily).
As I would deny relief on Appellant’s suppression claim, I would consider
his final issue, a challenge to the discretionary aspects of his aggregate 20 to
40 year sentence.
For the foregoing reasons, I respectfully concur in part and dissent in
part.
Judges Bowes, McLaughlin and King join this Concurring/Dissenting
Opinion.
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