Com. v. Horning, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RYAN HORNING,
Appellee No. 2646 EDA 2015
Appeal from the Order July 31, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006140-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 15, 2016
The Commonwealth appeals from the trial court’s order granting the
motion to suppress evidence filed by Appellee, Ryan Horning.1 We affirm.
We take the following relevant facts and procedural history from the
trial court’s October 28, 2015 opinion, and our independent review of the
certified record. On March 1, 2014, the victim, Christopher Miller, was
robbed after he left the SugarHouse Casino. The next day, police brought
Appellee in for questioning because the casino’s videotape surveillance
footage suggested his involvement in the robbery. Detective Dominic O’Neill
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*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth has certified that the court’s order terminates or
substantially handicaps its prosecution of this case. See Pa.R.A.P. 311(d).
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interviewed Appellee and provided Miranda2 warnings. When Appellee
invoked his right to remain silent, Detective O’Neill ended the interview and
asked him no further questions.
Police then received additional information implicating Appellee in the
robbery, including Miller’s identification of Appellee as his assailant in a
photo array. On March 13, 2014, Detective O’Neill called Appellee and asked
him to come into the police station, and Appellee arrived with his father,
James Horning (James). Detective O’Neill placed Appellee under arrest for
the robbery and took him to an interrogation room while James waited in the
lobby.
Approximately six minutes later, Detective O’Neill returned to James
and advised him of the charges against Appellee. James asked Detective
O’Neill if he could “do [him] a favor, would you please go ask [Appellee]
what he wants me to tell his mother and how he wants me to tell his mother
because I really don’t like giving her all this bad news.” (N.T. Suppression,
6/05/15, at 53 (testimony of James Horning)). Detective O’Neill agreed to
relay this to Appellee, and returned a few minutes later. He told James:
“[Appellee] wants you to tell his mother the truth. You don’t have to tell her
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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the whole truth and he wants you to contact his attorney for him.” (Id. at
53-54).3
Instead of waiting for Appellee’s attorney to arrive, Detective Ted
Wolkiewicz interviewed Appellee approximately seven hours later. Detective
Wolkiewicz Mirandized Appellee, who did not invoke his right to remain
silent or to counsel. Detective Wolkiewicz then proceeded with the
interrogation, during which Appellee gave a statement confessing to the
Miller robbery.
On May 28, 2015, Appellee filed a motion to suppress evidence. The
court held a hearing on June 5, 2015, and took the matter under
advisement. On July 31, 2015, following review of the parties’ briefs and
argument, the court entered its order granting Appellee’s motion to
suppress. This timely appeal followed.4
The Commonwealth raises one question for our review: “Was
[Appellee] legally incapable of waiving his right to counsel and giving a
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3
At the suppression hearing, Detective O’Neill testified that he did not recall
Appellee making this request regarding an attorney. (See N.T Suppression,
at 22-23). The trial court did not credit the detective’s testimony, and
instead credited the testimony of James, “based upon the consistency of his
testimony, his demeanor and manner of testifying and [Appellee’s] prior
invocation of his right to [remain silent].” (Trial Court Opinion, 10/28/15, at
2 n.1; see also N.T. Suppression, at 73-74). Appellee’s testimony on this
issue was consistent with that of James. (See N.T. Suppression, at 57).
4
The Commonwealth filed a concise statement of errors complained of on
appeal contemporaneously with its notice of appeal. The court entered an
opinion on October 28, 2015. See Pa.R.A.P. 1925.
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voluntary statement because he had asked his father to contact an attorney
at the time of arrest, seven hours before police attempted to question him?”
(Commonwealth’s Brief, at 3).
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review and
consider only the evidence from the defendant’s witnesses
together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate court if the
record supports those findings. The suppression court’s
conclusions of law, however, are not binding on an appellate
court, whose duty is to determine if the suppression court
properly applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278-79 (Pa. Super. 2012),
appeal denied, 70 A.3d 810 (Pa. 2013) (citation omitted). “Further, [i]t is
within the suppression court’s sole province as fact finder to pass on the
credibility of witnesses and the weight to be given their testimony.”
Commonwealth v. Gillespie, 103 A.3d 115, 118 (Pa. Super. 2014)
(citations and internal quotation mark omitted).
In its issue on appeal, the Commonwealth argues the trial court erred
in granting the motion to suppress because Appellee waived his right to
speak to a lawyer before police questioned him. (See Commonwealth’s
Brief, at 9). It contends that, from an objective standpoint, Appellee did not
clearly invoke his right to counsel. (See id. at 12). We disagree.
In Miranda, supra, the United States Supreme Court declared
that an accused has a Fifth and Fourteenth Amendment right to
have counsel present during custodial interrogation, so as to
ensure that the defendant’s right against compulsory self-
incrimination is protected. In Edwards v. Arizona, 451 U.S.
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477 (1981), the High Court revisited its holding in Miranda and
adopted a prophylactic rule that “when an accused has invoked
his right to have counsel present during custodial interrogation,
a valid waiver of that right cannot be established by showing
only that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.”
Edwards, supra at 484. The High Court explained that an
accused, “having expressed his desire to deal with the police
only through counsel, is not subject to further interrogation by
the authorities until counsel has been made available to him,
unless the accused himself initiates further
communication, exchanges, or conversations with the
police.” Id. at 484–85 (emphasis added). The purpose behind
this rule is “to prevent police from badgering a defendant into
waiving his previously asserted Miranda rights.” Michigan v.
Harvey, 494 U.S. 344, 350 (1990).
The U.S. Supreme Court has held that in order “[t]o avoid
difficulties of proof and to provide guidance to officers
conducting interrogations,” the determination of whether the
right to counsel was invoked by the accused is an “objective
inquiry.” Davis v. United States, 512 U.S. 452, 458–59
(1994). Effective assertion of the Fifth Amendment right to
counsel “requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for the
assistance of an attorney in dealing with custodial interrogation
by the police.” McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)
(emphasis omitted). However, if the accused makes an
ambiguous or equivocal reference that would lead an officer, in
light of the circumstances, to believe “only that the suspect
might be invoking the right to counsel,” police interrogation
need not cease. Davis, supra at 459 (emphasis in original).
The accused must “articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request
for an attorney.” Id.Commonwealth v. Martin, 101 A.3d 706, 725–26 (Pa. 2014), cert. denied
sub nom. Martin v. Pennsylvania, 136 S.Ct. 201 (2015) (one citation
omitted; emphasis in original; citation formatting provided).
Where . . . an accused invokes his Fifth Amendment rights
during a custodial interrogation but later provides an
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incriminating statement, this Court reviews the voluntariness of
the accused’s statement by examining whether authorities
refrained from further interrogation until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.
See Commonwealth v. Keaton, 45 A.3d 1050, 1067 (Pa.
2012) (invocation of Fifth Amendment right to counsel shields
arrestee from further interrogation until counsel is present,
unless arrestee initiates further conversation with police). In
Commonwealth v. Hubble, 504 A.2d 168 (Pa. 1986), this
Court held that a confession given after a defendant invokes his
right to counsel need not be suppressed where the defendant:
“(1) initiated further communication, exchanges, or
conversations with the police, and (2) knowingly and intelligently
waived the right to counsel.” Id. at 175.
Commonwealth v. Poplawski, 130 A.3d 697, 711-12 (Pa. 2015)
(footnote, some quotation marks, and some citations omitted; citation
formatting provided).
Furthermore, “[an a]ppellant’s subsequent cooperation [with police]
cannot be used to cast doubt on the validity of his initial assertion of the
right to counsel.” Commonwealth v. Zook, 553 A.2d 920, 923 (Pa. 1989),
cert. denied, 493 U.S. 873 (1989) (citation omitted) (holding appellant
clearly invoked his rights under Miranda to secure counsel where, during
police interview, he requested to use phone to call his mother to see if she
could get him an attorney).
Here, the trial court found that upon arriving in the interrogation room,
Appellee unequivocally asked Detective O’Neill to tell his father to call his
attorney, whom he had already secured. (See Trial Ct. Op., at 4). This
“statement [could] reasonably be construed to be an expression of a desire
for the assistance of an attorney in dealing with custodial interrogation by
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the police.” Martin, supra at 725; see also Zook, supra at 923; (N.T.
Suppression, at 53-55, 57-58, 62, 66). Detective O’Neill testified that he did
not recall Appellee’s request for an attorney. (See N.T. Suppression, at 22-
23). The trial court credited the testimony of Appellee and his father. (See
id. at 74). We are bound by these credibility determinations. 5 See
Gillespie, supra at 118. The trial court found that “[Appellee’s] phrasing
was unambiguous and clearly indicated that he was invoking his right to
counsel.” (Trial Ct. Op., at 5).
There is no indication that “[Appellee] himself initiate[d] further
communication, exchanges, or conversations with the police,” thereby
subjecting himself to further interrogation by the authorities. Martin, supra
at 725; see also Poplawski, supra at 711-12. Instead, the record shows
that Detective O’Neill did not attempt to ascertain any information regarding
Appellee’s representation, and that he allowed another detective to
interrogate Appellee without his attorney present. (See N.T. Suppression,
at 23, 25). Thus, upon review, we conclude that the trial court properly
granted Appellee’s motion to suppress evidence. See Miller, supra at
1278-79. Accordingly, we affirm the order of the trial court.
Order affirmed.
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5
Besides crediting the consistent testimony of Appellee and his father that
Appellee requested an attorney, the trial court noted that this finding was
not contradicted by Detective O’Neill because he had no memory of whether
the statement was made. (See Trial Ct. Op., at 2 n.1).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2016
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