Com. v. Lawrence, B. ( 2016 )

J. S41017/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
BREON LAWRENCE, :
:
Appellant : No. 3051 EDA 2015
Appeal from the Judgement of Sentence September 11, 2015
In the Court of Common Pleas of Delaware County
Criminal Division No.: CP-23-CR-0005326-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED June 24, 2016
Appellant, Breon Lawrence, appeals from the Judgment of Sentence
entered by the Delaware County Court of Common Pleas following his
conviction by a jury of First-Degree Murder and related offenses. After
careful review, we affirm on the basis of the trial court’s Opinion.
We adopt the facts as set forth in detail by the trial court. See Trial
Court Opinion, filed 1/13/16, at 1-9. In summary, Appellant had a
disagreement with the occupants of a vehicle and fired a silver gun into the
vehicle, hitting both Jabri Green and Jahkil Swain. Swain died as a result of
the shooting. Multiple witnesses identified Appellant as the shooter and
police officers recovered the murder weapon from Appellant’s bedroom.
*
Former Justice specially assigned to the Superior Court.
J.S41017/16
After waiving his Miranda1 rights, Appellant provided a statement to police
denying any involvement in the shooting, stating that he was with his son
and his grandmother at the time of the shooting.
Prior to trial, Appellant stipulated that he was a Person Not To Possess
Firearms. A jury convicted Appellant, and the trial court sentenced him
accordingly.
Appellant filed a Notice of Appeal on October 8, 2015. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following two issues for this Court’s review:
1. Was the evidence presented at the time of trial sufficient to
convict the [Appellant] of the charges of First[-]Degree Murder,
Recklessly Endangering Another Person, Possessing an
Instrument of Crime[,] and Person Not To Possess A Firearm?
2. Was the trial court in error in denying [Appellant]’s pre[-]trial
Motion as to suppression of statements given by the [Appellant]
to law enforcement authorities?
Appellant’s Brief at 4 (capitalization omitted).
Appellant first challenges the sufficiency of the evidence. We review
claims regarding the sufficiency of the evidence by considering whether,
viewing all the evidence admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. Commonwealth v.
Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014). Further, a conviction may be
1
Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J.S41017/16
sustained wholly on circumstantial evidence, and the trier of fact—while
passing on the credibility of the witnesses and the weight of the evidence—is
free to believe all, part, or none of the evidence. Id. In conducting this
review, the appellate court may not weigh the evidence and substitute its
judgment for the fact-finder. Id.
It is well-established that “[t]o sustain a conviction for murder of the
first degree, the Commonwealth must prove that: (1) a human being was
unlawfully killed; (2) the person accused is responsible for the killing; and
(3) the accused acted with malice and intent to kill.” 18 Pa.C.S. § 2502(a);
Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015). “Section 2502
of the Crimes Code defines murder of the first degree as an ‘intentional
killing,’” which, in turn, is defined as “a … willful, deliberate and
premeditated killing.’” 18 Pa.C.S. § 2502(a)-(d); Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he period of reflection required
for premeditation to establish the specific intent to kill may be very brief; in
fact[,] the design to kill can be formulated in a fraction of a second.
Premeditation and deliberation exist whenever the assailant possesses the
conscious purpose to bring about death.” Hitcho, supra at 746.
A person is guilty of Recklessly Endangering Another Person and
“commits a misdemeanor of the second degree if he recklessly engages in
conduct which places or may place another person in danger of death or
serious bodily injury.” 18 Pa.C.S. § 2705.
-3-
J.S41017/16
A person is guilty of Possession of an Instrument of Crime “if he
possesses any instrument of crime with intent to employ it criminally.” 18
Pa.C.S. § 907(a). The statute defines instrument of crime as “anything used
for criminal purposes and possessed by the actor under circumstances not
manifestly appropriate for lawful uses it may have.” 18 Pa.C.S. § 907(d)(2).
Section 6105, Persons Not to Possess Firearms provides, in relevant
part, that “[a] person who has been convicted of an offense enumerated in
subsection (b) … shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.” 18 Pa.C.S. § 6105(a)(1),
(b).
The Honorable James F. Nilon, Jr., sitting as the trial court, has
authored a comprehensive, thorough, and well-reasoned opinion, citing to
the record and relevant case law in addressing Appellant’s claims on appeal.
After a careful review of the parties’ briefs and the certified record, we affirm
on the basis of the trial court’s Opinion. See Trial Court Opinion, filed
1/13/16, at 10-17.
Appellant next challenges the denial of his Motion to Suppress his
statements. Our standard of review in an appeal from an order denying a
Motion to Suppress is as follows:
Our 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
-4-
J.S41017/16
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, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation
omitted).
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given their testimony.”
Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006).
Moreover, our scope of review from a suppression ruling is limited to the
evidentiary record that was created at the suppression hearing. In re L.J.,
79 A.3d 1073, 1087 (Pa. 2013).
After a careful review of the parties’ arguments and the record, we
affirm on the basis of the trial court’s Opinion. See Trial Court Opinion, filed
1/13/16, at 17, Exhibit A2 (concluding it properly denied Appellant’s Motion
to Suppress his statements to police because Appellant knowingly,
intelligently, and voluntarily waived his Miranda rights as demonstrated
through the written waiver and testimony from detectives about the
circumstances of the statement and waiver).
2
The trial court incorporated and attached its earlier Order and Opinion
denying Appellant’s Motion to Suppress filed on July 29, 2015.
-5-
J.S41017/16
The parties are instructed to attach a copy of the trial court’s Opinion
to all future filings.
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
-6-
Circulated 06/14/2016 12:02 PM
IN THE COURT OF COMMON PLEAS OF DELA WARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA 3051 EDA 2015
v. i/ CP-23-CR-5326-2014
CP-23-CR-5705-2014
BREON LA WREN CE
Christopher DiRosato, Esquire; Assistant District Attorney for the Commonwealth
Scott Galloway, Esquire; Attorney for the Appellant
OPINION
NILON, J. FILED: 01/13/16
Breon Lawrence, hereinafter "Appellant," challenges his convictions for Murder in the
First Degree.', Recklessly Endangering Another Person', Possession of an Instrument of Crime",
4
and Persons Not to Possess a Firearm by contesting the sufficiency of the evidence for each of
the charges. Additionally, Appellant argues that the Court erred in denying his pretrial Motion to
Suppress statements given by Appellant to law enforcement authorities. Appellant's contentions
are meritless.
FACTUAL HISTORY:
On April 11, 2014, Donald Womack was walking to Crosby Square Apartments in the
City of Chester to meet his friend, Breon Lawrence-Appellant. (N.T. 8/5/2015 p. 50). While
Womack was walking to the Apartments, he received a phone call from another friend, Jahkil
Swain. Swain said he would pick up Womack and drive him to the Crosby Square Apartments.
The two agreed to meet at Potter Street in Chester, Delaware County, Pennsylvania. (N.T.
1
18 Pa.C.S. § 2502
2
18 Pa.C.S. § 2705
3
18 l'a.c.s. § 907
4
I 8 Pa.C.S. § 6'IOS. (This charge was tried separately.)
1 APPENDIX "A"
8/5/2015 pp. 51-52). Five minutes later, Swain arrived on Potter Street. (N.T. 8/5/2015 p. 52).
The vehicle was Swain's mother's vehicle, a Dodge Avenger. Jabri Green was the driver, Swain
was seated in the front passenger seat and Dondre Ellis was a backseat passenger on the driver's
side. (N.T. 8/5/2015 pp. 52-53). Womack got into the vehicle in the backseat behind the
passenger, Swain. Jabri Green drove them to Crosby Square Apartments to meet with Appellant.
(N.T. 8/5/2015 p. 54).
When Womack arrived at Crosby Square Apartments, specifically Crosby Street between
13th and 14th Streets, Appellant was in the street riding a bike. (N.T. 8/5/2015 pp. 56, 256). Jabri
Green stopped the vehicle and Womack got out to speak with Appellant. (N.T. 8/5/2015 p. 56).
However, Womack testified that Appellant's "attention wasn't on [Womack]." (N.T. 8/5/2015 p.
56). Instead of talking to Womack, Appellant leaned into the driver's window and asked Swain
if it was "beef' or if it was "squashed." (N.T. 8/5/2015 pp. 56-57). The witness explained that
the word "beef' in Chester, PA means: "[p]roblems, they both had problems with each other." ...
"Q. What does the word squashed mean to you coming from the City of Chester? A. Let--let--I
guess let's be friends again, let's not beef no more." "[L]et bygones be bygones." (N.T. 8/5/2015
p. 56, p.60).
Appellant asked Swain this same question ten times in a demeanor that "wasn't friendly"
but Swain did not respond. (N.T. 8/5/2015 pp. 61, 62). Womack attempted to intervene by
insisting that it was "squashed" because they were all friends. (N.T. 8/5/2015 p. 61). However,
Appellant claimed that it had nothing to do with Womack and continued to ask Swain if it was
"beef' or "squashed." (N.T. 8/5/2015 p. 61). Swain eventually replied by reminding Appellant
that he tried to spit on Swain. (N.T. 8/5/2015 p. 61). Appellant responded by saying, "[Y]ou ...
told me to suck your dick." (N.T. 8/5/2015 p. 61). Shortly thereafter, Appellant asked Swain if
2
he wanted to fight but Swain said that he did not fight. (N.T. 8/5/2015 p. 62). Appellant then
asked Swain, "What you think you can't die? ... I just want to know if it's beef or if it's
squashed." (N.T. 8/6/2015 pp. 62-63). Swain finally answered by saying, "It's whatever." (N.T.
8/5/2015 p. 63).
After hearing that answer, Appellant "gave a look" by shutting his eyes and rolling his
head from side to side. (N.T. 8/5/2015 p. 63). Then, Appellant "pulled out the gun, a silver gun
from his waist and he ran around the front of the car and he take aim and shot." (N.T. 8/5/2015
pp. 63, 64). Womack told Appellant to "chill" but Appellant brought the gun up chest-high or
shoulder-high instead and held it in that position for "about three seconds" before shooting
Swain. (N.T. 8/6/2015 p. 65) .. As Womack testified, Appellant "took aim and shot him." (N.T.
8/5/2015 p. 65).
After the shot was fired, Green felt tingling in his right thigh and noticed that it was
bleeding as a result of being shot. (N.T. 8/5/2015 pp. 205, 219, 220, 222). Green put the car in
reverse and drove to Crozer Hospital with Swain. (N.T. 8/5/2015 pp. 67, 204-05). Swain
entered Crozer Hospital at approximately 2:32 in the afternoon and was pronounced dead
approximately eight minutes later at 2:40 in the afternoon. (N.T. 8/5/2015 p. 175). After
conducting an autopsy on April 14, 2014, Dr. Frederic Hellman, the Chief Medical Examiner of
Delaware County, determined that the cause of death was a single penetrating gunshot wound to
the trunk and ruled the manner of death a homicide. (N.T. 8/5/2015 pp. 161, 172, 187).
On the afternoon of the shooting, the Chester Police Department, including Officers
Robert Weigand and Frank Myers, responded to the Crozer Chester Medical Center for a report
of two subjects in a vehicle that were shot. (N.T. 8/5/2015 pp. 255-56). When Officer Weigand
arrived at Crozer Hospital, he noticed a Black Dodge Avenger parked in front of the Emergency
3
Room. The Officer testified that: "Officer Myers had directed me to the passenger side of the
vehicle where there was a hole from a projectile in the glass window." (N.T. 8/5/2015 pp. 256-
57). In addition, the casing from the projectile was found on the floor of the vehicle. (N.T.
8/5/2015 p. 257).
Detective Adam Sendek, a law enforcement officer with the Delaware County Criminal
Investigation Division for fifteen years, was assigned to investigate this case along with
Detective James Nolan from the Chester Police Department. (N.T. 8/6/2015 pp. 46, 47). Det.
Sendek had been assigned to the homicide unit for almost three years. (N.T. 8/6/2015 p. 46).
Det. Sendek testified at the Trial on August 6, 2015 that he conducted witness interviews which
led him to develop Appellant as a suspect. (N.T. 8/6/2015 pp. 35, 48, 52).
Specifically, on April 11, 2014, Det. Sendek obtained a recorded statement from Green in
the hospital during which Green said that he was driving in the area of the basketball courts by
Crosby Square when he "heard a gunshot[,] ... (saw] a hole, ... [and Swain said] he got hit."
(N.T. 8/5/2015 pp. 217-227). Green insisted that he did not see anyone around when he heard
the gunshot. (N.T. 8/5/2015 p. 222). However, on April 15, 2014, Det. Sendek conducted a
phone intercept between Green and Lenora Rodriguez, Swain's mother, during which Green
explained that Appellant shot and killed Swain. (N.T. 8/5/2015 pp. 289, 291). Also on this date,
Detective Michael Jay, assisting Det. Sendek, took a recorded statement from Ellis who
described how Appellant shot and killed Swain. (N.T. 8/5/2015 p. 242 & 8/6/2015 p. 36).
Additionally, Ellis reviewed a photo array on this date and identified Appellant as the actor who
killed Swain. (N.T. 8/6/2015 pp. 38-39, 40).
On April 26, 2014, Womack went to the Chester Police Department and provided a
recorded statement recounting the events that took place leading up to and following Appellant
4
killing Swain. (N.T. 8/5/2015 pp. 89-90, 134). While at the police department, Womack also
looked at a photo array to identify the person who shot Swain and identified Appellant. (N.T.
8/5/2015 pp. 90, 92). The account of events provided by Green in the phone intercept, Ellis in
his recorded statement, and Womack in his recorded statement were generally consistent with
each other.
As a result of this information, Det. Sendek issued an arrest warrant for Appellant. (N.T.
8/6/2015 p. 55). Det. Sendek approached Corporal James Mullen, a member of the U.S.
Marshals Violent Offenders Fugitive Task Force, regarding the execution of Appellant's arrest
warrant. (N.T. 8/5/2015 pp. 268-69). Cpl. Mullen learned of Appellant's location at 1026
Church Street in Upland Borough Delaware County, PA and, on April 29, 2014, went to the
residence with other Deputy Marshals to execute the arrest warrant. (N.T. 8/5/2015 p. 269).
After receiving consent from one of the tenants, who also specified that Appellant would be in a
bedroom downstairs to the right, entry was made into the residence. (N.T. 8/5/2015 pp. 273,
274). However, Appellant was not found inside the residence. (N.T. 8/5/2015 pp. 274, 275).
Appellant had jumped out of the second-floor window onto the roof in the rear of the home but
was ultimately apprehended and taken into custody by the U.S. Marshals. (N.T. 8/5/2015 pp.
274, 275). After receiving further consent from one of the tenants, a .357 Taurus revolver was
found sticking out of a men's work boot on the floor of the bedroom in which Appellant was
residing. (N.T. 8/5/2015 pp. 277, 278).
Appellant was ultimately brought to the Chester Police Department Headquarters. (N.T.
8/6/2015 p. 56). On April 29, 2014 at 6:20 p.m., Detective Sendek and Detective Randy
Bothwell interviewed Appellant. (N.T. 8/6/2015 pp. 57, 60). Det. Sendek informed Appellant
that he was under arrest for the murder of Jahkil Swain. (N.T. 8/6/2015 pp. 63-64). Det. Sendek
5
read Appellant his Miranda rights but Appellant did not invoke them. (N.T. 8/6/2015 pp. 58, 61-
63). Appellant provided a recorded statement on April 29, 2014 in which he stated that, at the
time he heard the gunshot, he was outside the Crosby Square Apartments with his son, "running
in and out of his grandmom's house." (N.T. 8/6/2015 pp. 66, 71). Additionally, he stated that he
purchased the silver handgun that was found in his bedroom after the date on which Swain was
killed. (N.T. 8/6/2015 p. 71). During his statement, Appellant never admitted any involvement
in the murder of Swain. (N.T. 8/6/2015 p. 71).
In April of 2014, Detective Louis Grandizio performed a ballistics examination on the
Taurus Model 60 .357 Magnum revolver that was found at Appellant's residence after he was
arrested. (N.T. 8/6/2015 p. 22). He compared the test-fire and the bullet jacket from the scene
and determined that "the copper bullet jacket recovered by Chester Police was fired from the
revolver." (N.T. 8/6/2015 pp. 30, 32).
Appellant's first witness was Marta Roberts, Appellant's grandmother. (N.T. 8/6/2015 p.
92). Roberts testified that, on April 11, 2014, she saw Appellant "outside the cluster" in Crosby
Square Apartments at the time she heard the gunshot. (N.T. 8/6/2015 pp. 92, 95). However, she
then testified that she saw Appellant leave the apartment but did not actually see him outside the
apartment because she did not go out. (N.T. 8/6/2015 pp. 96-97). Then Appellant called Shakia
Johnson, Appellant's aunt, to testify. (N.T. 8/6/2015 pp. 107, 108). Johnson testified that, at the
time she heard the gunshot on April 11, 2014, she saw Appellant "right outside the door inside
the apartment complex cluster" waiting for a ride. (N.T. 8/6/2015 p. 111).
Following the jury trial, a non-jury trial was held on August 6, 2015 for the Court to
decide whether the elements of Count 6, Persons Not to Possess a Firearm, had been met. (N.T.
8/6/2015 pp. 241-42). A stipulation was entered at the non-jury trial as follows:
6
If called to testify, Mr. Michael Castagna, of the Delaware County Office of Adult
Probation & Parole Services, is an agent for that Department currently supervising
the [Appellant], Breon Lawrence, for a conviction of Possession with the Intent to
Deliver a Controlled Substance, an ungraded felony, and on November 5th of
2012, Mr. Lawrence was convicted before Judge Kelly of Possession with the
Intent to Delivery [sic], an ungraded felony, that being cocaine, Schedule II, and
received a sentence of 11 Yi to 23 months of incarceration and is currently still
supervising Mr. Lawrence. If called to testify, he would identify the [Appellant]
as Mr. Lawrence who he is supervising and that, therefore, the evidence presented
by the Court would -- the ungraded felony would meet one of the enumerated
offenses under Section 6105.
(N.T. 8/6/2015 pp. 242-43). Additionally, a copy of Delaware County Court of Common Pleas,
Certificate of Imposition of Judgment of Sentence signed by Judge Kelly on November 5, 2012
at docket no. 3766-2012 was admitted into evidence. (N.T. 8/6/2015 p.- 243). The judgment of
sentence was evidence that the Appellant entered into a negotiated guilty plea to Possession with
the Intent to Deliver a Controlled Substance-Cocaine, an ungraded felony.
On August 6, 2015, following a jury trial, the Appellant was convicted, at docket 5326-
2014, of First-Degree Murder, Recklessly Endangering Another Person, Possessing an
Instrument of Crime5. In the related nonjury matter, the court found the Appellant guilty of
Persons not to Possess a Firearm6. At docket 5705 - 2014, the jury convicted the Appellant of
Possession of a Firearm with Manufacturer's Number Altered and Possession of a Controlled
Substance7• In the related nonjury matter, the court also found the Appellant guilty of Persons
Not to Possess a Firearm.
PROCEDURAL HISTORY:
This is an appeal from the Court's Judgment of Sentence imposed on September 11,
2015. Appellant, Breon Lawrence, was arrested and charged with inter alia Murder in the First
5
18 Pa.C.S. §§2502(a), 2705, and 907, respectively.
6
18 Pa.C.S. §6105.
7
18 Pa.C.S. §6110.2 and 35 P.S. §780-113 (a)(l6).
7
Degree", Recklessly Endangering Another Person", Possession of an Instrument of Crime'", and
Persons Not to Possess a Firearm!'. On August 18, 2014, a Preliminary Hearing was held
wherein District Justice Wilden H. Davis held Appellant for Court on all charges. At the P
Preliminary Hearing, Appellant was represented by Shaka Johnson, Esquire.
On September 17, 2014, Appellant was formally arraigned. The Office of the Public
Defender filed a petition to appoint counsel due to a conflict of interest on November 6, 2014.
On November 12, 2014, the Court appointed Scott Galloway, Esquire to represent Appellant. On
December 16, 2014, Appellant filed an "Omnibus Pre-Trial Motion" seeking to suppress (1)
statements of Appellant and (2) photographic identification. A Suppression Hearing was held on
Appellant's Motion on January 9, 2015 and March 13, 2015. On July 21, 2015, the Court denied
Appellant's Motion to Suppress photographic identification and issued Findings of Fact and
Conclusions of Law. On July 28, 2015, the Court denied Appellant's Motion to Suppress
statements of Appellant and again issued Findings of Fact and Conclusions of Law. On June 1,
2015, Appellant filed a "Notice of Alibi Defense."
On August 5, 2015, Appellant was convicted after a two-day Jury Trial of Murder in the
First Degree12, Recklessly Endangering Another Person':', Possession of an Instrument of
Crime!", and Persons Not to Possess a Firearm.15 Prior to sentencing, the Court ordered a Pre-
Sentence Investigation Report and Drug and Alcohol Evaluation. On September 11, 2015,
Appellant was sentenced as follows: Count 1, Murder in the First Degree, life imprisonment
without the possibility of parole, no RRRI eligibility, provide a DNA simple; Count 3,
8
18 Pa.C.S. § 2502
9
18 Pa.C.S. § 2705
10
18 Pa.C.S. § 907
11
18 Pa.C.S. § 6105
12
18 Pa.C.S. § 2502
13
18 Pa.C.S. § 2705
14
18 Pa.C.S. § 907
15
18 Pa.C.S. § 6105
8
Recklessly Endangering Another Person, one to two years SCI consecutive to Count 2; Count 6,
Possession of a Firearm Prohibited, five (5) to ten (10) years consecutive to Count 3; and Count
4, Possession of an Instrument of Crime, one to two years consecutive to Count 1 but concurrent
to Counts 3 and 6 for an aggregate sentence of life without parole plus 6 to 12, no RRRI,
provide a DNA sample, and restitution. (N.T. 9/11/15 pp.18-19)16.
On case 5705-2014, the court sentenced the Appellant: Count 1, Persons not to Possess,
5 to 10 years SCI; Count 3, Possession of a Firearm with an Altered or Obliterated
Manufacturer's Number, 5 to 10 years concurrent to Count 1; Count 7, Possession of a
Controlled Substance, 1 to 3 years concurrent to Counts 1 and 3. The aggregate sentence is 5 to
10 years SCI, no RRRI eligibility, provide a DNA sample and that sentence runs concurrent to
5326-2014. (N.T. 9/11/15 p.19).
On October 8, 2015, Appellant filed a timely Notice of Appeal.17 On October 9, 2015,
the Court directed Appellant to file a "Concise Statement of Matters Complained of on Appeal".
On October 29, 2015, Appellant filed a "Concise Statement of Matters Complained of on
Appeal." Appellant raises the following issues for appellate review:
1. Was the evidence presented at the time of Trial sufficient to convict Appellant of the
charges of First Degree Murder, Recklessly Endangering Another Person, Possessing
an Instrument of Crime, and Person Not to Possess a Firearm?
2. Was the Trial Court in error in denying Appellant's Pretrial Motion as to suppression
of statements given by Appellant to law enforcement authorities?
16
In the course of preparing this Opinion, the court found a clerical error in the Judgment of Sentence and it was
corrected. Count 4 mistakenly noted a sentence of 1 to 5 years when it should have been a sentence of 1 to 2 years.
This change to the sentencing order decreased the Appellant's original sentence. Commonwealth v. Borrin, 12 A.3d
466 (2011).
17
The Appellant filed a "Motion to Consolidate" in the Superior Court and the Motion was granted on November
23, 2015. Therefore, Common Pleas Dockets are consolidated for purposes of appeal: Nos. 23-CR-5326-2014 and
5705-2014. They are consolidated from 2 separate Superior Court docket numbers: Nos. 3051 EDA 2015, 3053
EDA 2015 to the sole docket number: No. 3051 EDA 2015.
9
DISCUSSION:
I. Appellant argues that the evidence presented at the time of Trial was insufficient
to convict Appellant of the charges of First Degree Murder, Recklessly
Endangering Another Person, Possession of an Instrument of Crime, and Person
Not to Possess a Firearm.
The first issue raised by Appellant for appellate review presents a challenge to the
sufficiency of the evidence. Specifically, he argues that the evidence is insufficient to support his
convictions for First Degree Murder, Recklessly Endangering Another Person, Possession of an
Instrument of Crime, and Person Not to Possess a Firearm.
A. Standards governing sufficiency of the evidence
A claim challenging the sufficiency of the evidence is a question of law. Commonwealth v.
Strouse, 2006 Pa. Super. 273, 909 A.2d 368 (2006); Commonwealth v. Dale, 2003 Pa. Super. 413,
836 A.2d 150 (2003). When reviewing a challenge to the sufficiency of the evidence to support a
conviction, the court must determine whether the evidence was sufficient to enable the trier of fact
to find every material element of the crime charged and the commission thereof by the accused,
beyond a reasonable doubt, viewing the evidence and the reasonable inferences therefrom in the
light most favorable to the Commonwealth, as the verdict winner. Commonwealth v. Strouse,
supra; Commonwealth v. Dale, supra. (See also Commonwealth v. McCloskey, 2003 Pa. Super.
409, 835 A.2d 801 (2003); Commonwealthv. Widmer, 560 Pa. 308, 744 A.2d 745 (2000).
Furthermore, the Commonwealth may sustain its burden by proving the elements of the
offense with evidence which is entirely circumstantial and the trier of fact, who determines
credibility of witnesses and the weight to give evidence produced, is free to believe all, part, or none
of the evidence. Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super 2003).
The Superior Court may not substitute its judgment for that of the finder of fact.
Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000). If the fact finder reasonably could
10
have determined from the evidence adduced that all of the necessary elements of the crime were
established, then that evidence will be deemed to support the verdict. Commonwealth v. Wood, 432
Pa. Super. 183, 637 A.2d 1335 (1994). The standard applies equally to cases in which the evidence
is circumstantial,rather than direct, as long as the evidence as a whole links the accused to the crime
charged beyond a reasonable doubt. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101
(1988); Commonwealth v. Swerdlow, 431 Pa. Super. 453, 636 A.2d 1173 (1994).
Additionally, mere conflicts in the testimony of the witnesses do not render the evidence
insufficient. Commonwealth v. Moore, 436 Pa. Super. 495, 648 A.2d 331 (1994). Issues of
credibility are left to the finder of fact, who is free to accept all, part, or none of a witness's
testimony. Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97 (1995); Commonwealth v. Valette,
531 Pa. 384, 388, 613 A.2d 548 (1992); Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621
(1995); Commonwealth v. Kelley, 444 Pa. Super. 377, 664 A.2d 123 (1995); Commonwealth v.
Lytle, 444 Pa. Super. 126, 663 A.2d 707 (1995). Questions of doubt are for the finder of fact, unless
the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the totality of the circumstances. Commonwealth v. Cassidy, 447 Pa. Super. 192, 668
A.2d 1143 (1995); Commonwealth v. Govens, 429 Pa. Super. 464, 488, 632 A.2d 1316 (1993),
alloc. den., 539 Pa. 675, 652 A.2d 1321 (1994). Only when the evidence offered to support the
verdict is in contradiction to the physical facts, or in contravention to human experience and the
laws of nature, can the evidence be considered insufficient as a matter of law. Commonwealth v.
Widmer, supra.
The appellate courts in Pennsylvania have articulated a well-settled test for reviewing
sufficiency of the evidence claims:
The standard we apply in reviewing the sufficiency of the evidence is
whether viewing all the evidence admitted at trial in the light most
11
favorable to the verdict winner, there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a reasonable doubt.
In applying the above test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be drawn
from the combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact while passing upon
the credibility of witnesses and the weight of the evidence produced, is
free to believe all, part or none of the evidence.
Commonwealth v. Baker, 72 A.3d 652, 657-58 (Pa. Super. 2013) appeal denied, 86 A.3d 231
(Pa. 2014) (quoting Commonwealth v. Knox, 50 A.3d 749, 754 (Pa. Super. 2012), appeal granted
on other grounds, 68 A.3d 323 (Pa. 2013)). Furthermore, "the critical inquiry on review of the
sufficiency of the evidence to support a criminal conviction ... does not require a court to 'ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt."' Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)
(emphasis added).
In this case, the Commonwealth was able to present ample evidence, far in excess of the
necessary burden enumerated above. Therefore, the Judgment of Sentence as to First Degree
Murder, Recklessly Endangering Another Person, Possessing an Instrument of Crime, and
Person Not to Possess a Firearm should be upheld.
1. The evidence was sufficient to prove the elements of First Degree Murder
beyond a reasonable doubt.
First Degree Murder is defined as "an intentional killing." 18 Pa.C.S.§ 2502(a). The
Crimes Code further defines an "intentional killing" as a "[k]illing by means of poison, or by
12
lying in wait, or by any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S.§
2502(d). In order to convict an individual of first degree murder, the Commonwealth has the
burden of proving the following elements beyond a reasonable doubt at trial: (1) a human being
was unlawfully killed; (2) the accused is responsible for the killing; and (3) the accused acted
with malice and a specific intent to kill. Commonwealth v. Reed, 990 A.2d 1158, 1161 (Pa.
2010). With regard to the third element, the Commonwealth may establish specific intent to kill
through wholly circumstantial evidence, such as the use of a deadly weapon on a vital part of the
victim's body. See Commonwealth v. Smith, 604 Pa. 126, 142 (2009); Commonwealth v.
Watkins, 577 Pa. 194, 209 (2003). Similarly, malice may also be inferred from the use of a
deadly weapon on a vital part of the victim's body, such as the chest. See Commonwealth v.
Briggs, 12 A.3d 291, 306 (Pa. 2011) (finding the chest and abdomen to be vital areas of the body
such that the convictions for two counts of first degree murder could be upheld); Commonwealth
v. Rawles, 501 Pa. 514, 522, 462 A.2d 619, 623 (1983) (finding specific intent to kill when the
victim was fatally stabbed in the chest). According to the Crimes Code, any loaded or unloaded
firearm, inter alia, constitutes a "deadly weapon." 18 Pa.C.S.§ 2301.
Construed in the light most favorable to the Commonwealth, the evidence clearly
supports Appellant's First Degree Murder conviction. Specifically, the evidence showed that
Appellant pulled out a loaded silver revolver from his waist and ran around to the front of the car
where, despite Womack telling him to chill, Appellant brought the gun up chest-high or shoulder
-high and held it there for approximately three seconds, aiming it at Swain, before he ultimately
fired at Swain. As Womack testified, Appellant "took aim and shot him." (N.T. 8/5/2015 p, 65).
The bullet penetrated the windshield and struck Swain in the chest. According to Dr. Hellman, it
was Appellant's bullet to the chest that killed Swain within eight minutes. Therefore, the fact
13
that Appellant used a revolver-a deadly weapon-to shoot Swain in the chest-a vital portion
of his body-and kill him clearly satisfies the elements of this crime. As a result, there was
sufficient evidence to support the First Degree Murder conviction.
2. The evidence was sufficient to prove the elements of Recklessly
Endangering Another Person beyond a reasonable doubt.
A person commits the crime of Recklessly Endangering Another Person if he recklessly
engages in conduct which places or may place another person in danger of death or serious
bodily injury. 18 Pa.C.S.§ 2705. '"The mens rea required for this crime is a conscious disregard
of a known risk of death or great bodily harm to another person."' Commonwealth v. Peer, 684
A.2d 1077, 1080 (Pa.Super. 1996) (quoting Commonwealth v. Cottam, 616 A.2d 988, 1004
(Pa.Super 1992)). To sustain a conviction under this statute, the Commonwealth must prove that
the defendant had an actual present ability to inflict harm and not merely the apparent ability to
do so. In re Maloney, 636 A.2d 671, 674 (Pa.Super. 1994). Additionally, "'[d]anger, not merely
the apprehension of danger, must be created."' Id. (quoting Commonwealth v. Trowbridge, 395
A.2d 1337, 1340 (Pa.Super. 1978)). Brandishing a loaded firearm during the commission of a
crime provides a sufficient basis on which a factfinder may conclude that a defendant proceeded
with conscious disregard for the safety of others, and that he had the present ability to inflict
great bodily harm or death. Commonwealth v. Hopkins, 747 A.2d 910, 916 (Pa.Super. 2000); see
also Commonwealth v. Hartzell, 988 A.2d 141, 144 (Pa.Super, 2009) (holding that discharging a
weapon multiple times in the vicinity of others constitutes a sufficient danger to satisfy the
statute).
Construed m the light most favorable to the Commonwealth, the evidence clearly
supports Appellant's Recklessly Endangering Another Person conviction. The evidence shows
that Appellant pulled a loaded revolver out of his waist and ran to the front of the vehicle. Inside
14
the vehicle, Jabri Green was sitting in the front driver's seat and Swain was sitting in the front
passenger's seat. Appellant took aim and fired into the vehicle. Although the bullet directly
struck and killed Swain, Green suffered an injury to his right thigh as a result of Appellant firing
the gun into the vehicle. (N.T. 8/5/2015 pp. 50-67).
By firing a gun into the vehicle occupied by Swain and Green in the front seats,
Appellant showed that he had the present ability to inflict great bodily harm or death and
certainly acted with conscious disregard for Green's safety. Although Appellant was not aiming
at Green, the loaded revolver was pointed in his general direction. Furthermore, because the
bullet first went through the windshield, it is conceivable that it could have been deflected after
going through the windshield and struck Green. Additionally, with the force of the bullet
coming through the windshield, it is not impossible to think that a fragment of windshield glass
or shrapnel could have struck Green in a vital portion of his body. Green testified that his leg
started bleeding from "a gunshot wound" and he was treated at Crozer Chester Hospital for the
injury. (N.T. 8/5/15 p.205, p.217). As a result, there was sufficient evidence to support the
Recklessly Endangering Another Person conviction.
3. The evidence was sufficient to prove the elements of Possession of an
Instrument of Crime beyond a reasonable doubt.
A person commits the crime of Possession of an Instrument of Crime if he possesses any
instrument of crime with intent to employ it criminally. 18 Pa.C.S.§ 907(a). An "instrument of
crime" is defined as any of the following: (1) Anything specially made or specially adapted for
criminal use; (2) Anything used for criminal purposes and possessed by the actor under
circumstances not manifestly appropriate for lawful uses it may have. Id § 907(d).
Construed in the light most favorable to the Commonwealth, the evidence clearly
supports Appellant's Possession of an Instrument of Crime conviction. The evidence clearly
15
demonstrates that Appellant possessed a loaded silver revolver that he had pulled from his waist.
The evidence also supports the fact that Appellant had the intent to employ the loaded revolver
criminally. The evidence demonstrates that Appellant was trying to determine if Swain had "a
beef' with him, with little success. Appellant ultimately pulled out his loaded revolver from his
waist, ran around to the front of the vehicle so that he was in front of Swain, aimed it at Swain
for three seconds and then shot at Swain through the vehicle. The credible, unrebutted testimony
from eye-witness Donald Womack was: "Breon pulled out the gun, a silver gun from his waist
and he ran around the front of the car and he take aim and shot." (N.T. 8/5/2015 p. 63). This
course of action certainly shows that by pulling the loaded revolver out, aiming it at Swain, and
ultimately firing it at Swain, Appellant-Breon Lawrence's intent was to kill Swain. As a result,
there was sufficient evidence to support the Possession of an Instrument of Crime conviction.
4. The evidence was sufficient to prove the elements of Person Not to Possess
a Firearmbeyond a reasonable doubt.
With regard to the crime of "Person Not to Possess a Firearm", Section 6105 of the
Crimes Code provides:
(1) A person who has been convicted of an offense enumerated in subsection (b),
within or without this Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection ( c) shall not possess, use, control,
sell, transfer or manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S.§ 6105(a)(l). Relevant to this case is § 6105(c) which references "Other persons"
who are subject to the prohibition of possessing a firearm. Id. § 6105(c). Specifically,
subsection (c)(2) provides:
A person who has been convicted of an offense under the act of April 14, 1972
(P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other
state, that may be punishable by a term of imprisonment exceeding two years.
16
Id § 6105(c)(2).
Construed m the light most favorable to the Commonwealth, the evidence clearly
supports Appellant's 'Person Not to Possess a Firearm' conviction. As mentioned above, the
evidence at the Jury Trial proved that Appellant possessed a loaded revolver and used it to kill
Swain.
Additionally, the Stipulation that was entered at the Non-Jury Trial established that on
November 5, 2012, under Delaware County Court of Common Pleas docket number 3766-2012,
Appellant was convicted of an offense under The Controlled Substance, Drug, Device and
Cosmetic Act-Possession with Intent to Deliver a Controlled Substance, Cocaine, a Schedule II
drug-as required by the statute. (N.T. 8/6/15 pp. 241-244). As a result, there was sufficient
evidence to support the Person Not to Possess a Firearm conviction.
II. Appellant argues that the Trial Court erred in denying his pretrial Motion. to
Suppress statements given by Appellant to law enforcement authorities.
The second issue raised for appellate review presents a challenge to the Order denying
Appellant's Motion to Suppress. The court did not err in denying Appellant's Motion to
Suppress Evidence for the reasons provided in the Findings of Fact and Conclusions of Law
issued July 28, 2015, a copy of which is attached hereto, and incorporated by reference, as
Exhibit "A".
17
CONCLUSION:
The evidence presented at trial was sufficient to convict Appellant of the charges of First
Degree Murder, Recklessly Endangering Another Person, Possession of an Instrument of Crime,
and Persons Not to Possess a Firearm. Further, the Court properly denied Appellant's pretrial
Motion to Suppress and therefore, the Judgment of Sentence should be affirmed on appeal.
BY THE COURT:
18
EXHIBIT
"A"
19
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-23-CR-5326-14
v. CP-23-CR-5705-14
BREON LAWRENCE
Christopher DiRosato, Esquire; Assistant District Attorney for the Commonwealth
Scott Galloway, Esquire; Attorney for the Defendant
ORDER DENYING DEFENDANT'S "MOTION TO SUPPRESS
STATEMENTS OF DEFENDNANT"
AND NOW, this 28th day of July 2015, upon consideration of the Defendant's "Motion
to Suppress Statements of Defendant?', and the Hearings held on January 9, 2015 and March 15,
2015, it is hereby ORDERED AND DECREED that said Motion is DENiED. The Court issues
the following:
A. Findings of Fact:
1. .On April 11, 2014, at approximately 2:36 p.m., the Chester Police Department
responded to a radio call to the Crozer Chester Medical Center for a report of a
shooting victim. The Victim, J ahkil Swain, was pronounced dead at Crozer Medical
Center when Officers arrived. A post-mortem examination that was conducted on
April 15, 2014 by Dr. Frederic Hellman, the Chief Medical Examiner of Delaware
County, determined that the cause of death was a single gunshot wound to the torso,
and ruled the manner of death a homicide. The incident itself took place on Crosby
Street, in the City of Chester, Delaware County, Pennsylvania. Eye-witnesses allege
I
Section II of Defendant's Omnibus Motion. (Sections I and III have already been addressed by the court).
1
that the Defendant approached the driver's side door where the victim was seated and
fired once at the victim.
2. Detective Adam Sendek, a law enforcement officer for approximately 45 years with
the City of Chester Police Department, and now with the Delaware County Criminal
Investigation Division, was assigned to investigate this case along with Detective
James Nolan from the Chester Police Department. Det. Sendek was a detective in
narcotics for 12 years, and has been assigned to the homicide unit for 2 years. (N.T.
1/9/2015 pp. 6-7). Det. Sendek testified at the January 9, 2015 Hearing that he
conducted witness interviews which led him to develop the Defendant as a suspect.
(N.T. 1/9/2015 pp. 8-9). Det. Sendek subsequently issued an arrest warrant for the
Defendant. The Defendant was taken into custody by the U.S. Marshalls in Upland
Borough on April 29, 2014, at approximately 4:00 p.m. (N.T. 1/9/2015 pp. 9-10).
After he was arrested, the Defendant was brought to the Chester Police Department
Headquarters. Also on April 29, 2014, a silver revolver was recovered from the
Defendant's residence, which matched the description given by the witnesses of the
handgun used in the homicide. (N.T. 1/9/2015 pp. 10-11).
3. On April 29, 2014, at 6:20 p.m. Detective Sendek and Detective Randy Bothwell
interviewed the Defendant. Det. Sendek informed the Defendant that he was under
arrest for the murder of Jahkil Swain. (N.T. 1/9/2015 pp. 11-12). Det. Sendek read
the Defendant his Miranda rights and had the Defendant sign and initial each
paragraph of the Waiver of Miranda Rights Form used by the Chester Police
2
Department'. Det. Sendek read the Form paragraph by paragraph to the Defendant.
Defendant did not request an attorney, nor to remain silent, and did not have any
questions regarding the rights he was waiving. (N.T. 1/9/2015 pp. 12-14).
4. Based on Det. Sendek's experience in law enforcement, the Defendant did not appear
to be under the influence of alcohol or a controlled substance. (N.T. 1/9/2015 pp. 17-
19). The Defendant did not appear to exhibit any indication of mental illness or
mental defect. (N.T. 1/9/2015 pp. 19-20). Det. Sendek testified that the Defendant
was not threatened in any manner or promised anything in return for his statement.
(N.T. 1/9/2015 p. 20). Det. Sendek and Det. Boswell spoke with the Defendant for
twenty to thirty minutes prior to recording any statement. (N.T. 1/9/2015 pp. 20-21).
No threats or promises were issued during the unrecorded portion of the interview.
The Detectives asked the Defendant for his permission to record the interview and
showed him the digital recorder, to which the Defendant agreed and recording began.
(N.T. 1/9/2015 p. 21). The recording lasted for approximately 30 minutes. (N.T.
1/9/2015 p. 23). Defendant never admitted involvement in the murderer during any
part of the interview. The recording was admitted into evidence as CS-2, without
objection, at the Suppression Hearing on January 9, 2015. (N.T. 1/9/2015 pp. 22-23).
B. CONCLUSIONS OF LAW:
I. Motion to Suppress Statements
1. The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602
( 1966) prohibited the use of inculpatory statements obtained in violation of the Fifth
2
The Waiver of Rights Form was admitted into evidence without objection as Exhibit CS-1. (N.T. 1/9/15 p. 36).
. 3
Amendment to the United States Constitution. The Court in Miranda mandated that
prior to custodial interrogation, a suspect must be advised that he has the right to
remain silent, that anything he says can be used against him in a court of law, that he
has the right to presence of counsel, and that if he cannot afford counsel one will be
appointed to him. Miranda, 384 U.S. at 444-45.
2. The Fifth Amendment right to counsel and the rights guaranteed by Miranda are only
triggered when a person is undergoing actual custodial interrogation.
Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980). Statements which result
from a custodial interrogation by law enforcement officers cannot be admitted against
the defendant in a criminal proceeding, unless that defendant has been advised of his
right against self-incrimination and his right to counsel. See, In the Interest of Mellot,
476 A.2d 11 (Pa. Super. 1984) (citing Miranda v. Arizona, 384 U.S. 463, 478-479, 86
S. Ct. 1602, 1612 (1966)). Here, the Commonwealth asserts that the Defendant
waived his Miranda rights and gave a voluntary statement. Defendant did so by
signing and initialing each section of the Waiver of Miranda Rights Form, after they
were verbally read to him, section by section, by Detective Sendek. (N.T. 1/9/2015
pp. 14-16).
Waiver-must be made knowingly, mteDigentJy and voluntarily:
3. In Pennsylvania, the Commonwealth has the burden of proving a knowing,
intelligent, and voluntary waiver of Miranda rights. Commonwealth v. Fletcher, 750
A.2d 261, 268 (Pa. 2000). "In order to do so, the Commonwealth must establish that
the proper warnings were given and that the accused manifested an understanding of
4
these warnings." Id. The Commonwealth must prove by a preponderance of the
evidence that the challenged evidence is admissible. Commonwealth v. Smith, 784
A.2d 182,186 (Pa. Super. 2001) (citing Commonwealth v. James, 486 A.2d 376 (Pa.
1985)).
4. The requirements of due process are satisfied and the protection against the use of
involuntary confessions, which law and reason demand, are met by application of the
"totality of the circumstances" analysis to all questions involving the waiver of rights
and the voluntariness of confessions. Commonwealth v. Garcia, 84 7 A.2d 67 (Pa.
Super. 2004),judgment aff'd, 888 A.2d 633 (Pa. 2005).
5. The "totality of the circumstances" analysis includes all of the attending facts and
circumstances which must be considered and weighed in determining whether a
confession was knowingly and freely given. In the Interest of T.B., 11 A.3d 500 (Pa.
Super. 2010); Commonwealth v. Harvey, 812 A.2d 1190, (Pa. 2002); Commonwealth
v. Williams, 475 A.2d 1283 (Pa. 1984).
6. In making a voluntariness determination, the court examines the following factors:
"(l) the duration and means of interrogation; (2) the defendant's physical and
psychological state; (3) the conditions of detention; (4) the attitude of the interrogator;
(5) any and all other factors that could drain a person's ability to withstand suggestion
and coercion." Commonwealth v. Harvey, 571 Pa. 533, 812 A.2d 1190 (2002). The
giving of Miranda warnings is an important factor in determining voluntariness. As
the Pennsylvania Supreme Court noted in Commonwealth v. Templin, 568 Pa. 306,
795 A.2d 959 (2002):
5
The fact that warnings are given is an important factor tending in the
direction of a voluntariness finding. This fact is important in two respects.
It bears on the coerciveness of the circumstances, for it reveals that the
police were aware of the suspect's rights and presumably prepared to
honor them .. .it bears on the defendant's susceptibility, for it shows that
the defendant was aware that he had a right not to talk to the police.
Templin, 568 Pa. at 318, 795 A.2d at 966.
In the case sub Judice, the Defendant's waiver of his Miranda rights was voluntary.
Defendant was interrogated in an interview room at the Chester City Police Department
Headquarters. (N.T. 1/9/2015 pp. 10-12). Only Detective Sendek, Detective Randy Bothwell and
the Defendant were present in the room during the interrogation. (N.T. 1/9/2015 p. 12). The
room was described by Det. Sendek as: "one table, four chairs, blank walls, one window, very
spartan". (N.T. 1/9/2015 p. 12). The duration of the interrogation lasted approximately 55
minutes, 20 minutes of which was off the record, and 25 minutes of which was recorded. (N.T.
1/9/2015 pp. 20, 34).
The interview started with a 20-30 minute unrecorded interview. During the unrecorded
portion of the interview, the Detectives did not promise anything to the Defendant in return for a
statement:
Q. And there was nothing discussed about Mr. Lawrence's giving his
statement in reference to what might happen down the road in reference to
his case?
A. No, Sir.
Q. Nothing like that was said?
A. No deal was -there was no offer of anything, sir.
Q. Well, I don't think my question was about an offer. Was there any
discussions about. ..
A. None.
Q. . .. what sentence he may expect if he talked as opposed to not talking?
A. No, sir.
6
(N.T. 1/9/2015 pp. 31-32). Only "minimal questions" were asked of the Defendant while
they were "off the record." (N.T. 1/9/2015 p. 32). After the "off the record" portion of the
interview was complete, the Defendant was fully aware that he was then put on the record and
being recorded, as he gave Detective Sendek permission to record the interview. (N.T. 1/9/2015
p. 21). Detective Sendek also pulled out his digital recorder and showed it to the Defendant.
(N.T. 1/9/2015 p. 21). The Defendant's psychological state was observed by the Detective as
being "very cooperative," and the Defendant did not have any questions related to the waiver of
his Miranda rights. (N.T. 1/9/2015 p. 21).
The Defendant was not threatened with any physical harm if he did not provide a
statement. (N. T. 1/9/2015 p. 19). Defendant was also not promised anything in return for
providing a statement, including no promises regarding the criminal charges he may be facing, or
the outcome of his case. (N.T. 1/9/2015 p. 19).
Miranda requires that any decision to waive the right against self-incrimination be made
knowingly and intelligently. Commonwealth v. Fletcher, 750 A.2d 261, 268 (Pa. 2000). "The
requirement of a knowing and intelligent waiver of rights means that the suspect must have
cognitive faculties for understanding the meaning and effect of statements he may give. In
determining whether there has been an intelligent waiver, various factors, which were often
considered in pre-Miranda confession cases under the 'totality of circumstances' test, are
extremely relevant. Among these factors are the age of the accused, his mental capacity, and the
presence or absence of prior contact with the police." 42 Am Jur POF 2d 617.
7
Here, the Defendant was 21 years-old on the date the Police Criminal Complaint was
filed. His mental capacity was described by Detective Sendek, as follows:
Q. Was Mr. Lawrence, did he appear to be mentally deficient or mentally ill
while you interacted with him?
A. No, sir.
Q. Did he ever inappropriately respond to your question or act ·
inappropriately to question his mental capabilities?
A. Not at any time. No, sir.
Q. Did Mr. Lawrence represent to you that he was suffering from any
psychiatric or psychological illness?
A. He did not.
(N.T. 1/9/2015 pp.19-20). He was described by Detective Sendek as understanding the
situation. There was nothing about the Defendant's demeanor that caused the Detective concern.
Detective Sendek had interacted many times over his 45 years in law enforcement with people
who suffered from mental defects such as mental retardation and mental illness. (N.T. 1/9/2015
pp. 19-20). The Defendant appeared to have the mental capacity to execute the Waiver of
Miranda Rights form.
Defendant also did not appear to be under the influence of any drugs or alcohol when he
signed the waiver form. Detective Sendek testified to interviewing persons under the influence
of controlled substances "many times" in his 45 years in law enforcement. (N.T. 1/9/2015 pp.
17-18). He also indicated that he had specific experience interviewing persons under the
influence of heroin. He indicated that usually people under the influence of heroin are "laid
back, easy going, matter-of-fact, woozy." (N.T. 1/9/2015 p. 17). Also, "they're not wired at all,
lethargic would be the more appropriate word." (N.T. 1/9/2015 p. 18). Detective Sendek
testified the Defendant was not exhibiting any of the signs associated with being under the
influence of heroin. (N.T. 1/9/2015 p. 18).
8
Detective Sendek also testified as to the Defendant not appearing to be under the
influence of alcohol:
Q. Was Mr. - - have you encountered individuals under the influence of
alcohol in your 45 years of a police officer?
A. Absolutely.
Q. Did - - what signs do you normally look for to determine whether
someone's under the influence of alcohol?
A. Again, sir, either an angry drunk or a happy drunk, he didn't exhibit
either of those signs.
Q. Did you smell any alcohol coming from his person?
A. I did not, sir.
Q. Did his eyes appear to be bloodshot?
A. No, sir.
Q. Speech slurred in any form or fashion?
A. No, sir.
Q. Was Mr. Lawrence - - did Mr. Lawrence appear to be under the
influence of alcohol?
A. No.
(N.T. 1/9/2015 p. 18). Defendant did not appear to be under the influence of any controlled
substances or alcohol at the time he signed the Waiver of Miranda Rights Form.
The Miranda decision recognizes that a suspect may waive his rights under the privilege
against self-incrimination, so long as the waiver is made (1) voluntarily, (2) knowingly, and (3)
intelligently. In the case sub judice, examining the totality of the circumstances the Defendant
voluntarily waived his Miranda rights. He exhibited no signs of mental illness or defect when
responding to the Detective's questions. There was no evidence of physical mistreatment and
there was testimony that the Defendant was relaxed and cooperative. (N.T. 1/9/2015 p. 21). The
conditions of the interview were not coercive. There was no evidence of the use of fear or
trickery by the interrogators.
The Defendant made a knowing and intelligent waiver of his rights. He had the cognitive
faculties for understanding the meaning and effect of statements he gave. He gave an intelligent
9
waiver. Based on the credible, unrebutted testimony of Detective Sendek, the Defendant had the
age and mental capacity (N.T. 1/9/2015 pp. 20, 25) to give a sufficient waiver of his Miranda
rights.
There is Affirmative Evidence of Waiver-the Defendant executed a written waiver
of his Miranda rights.
Here, .the Defendant expressly waived his Miranda rights by signing the Advice of Rights
Form ( CS-1)3 which is strong evidence that the Defendant knowingly, intelligently and
voluntarily waived his rights. See North Carolina v. Butler, 441 U.S at 373 ("An express written
or oral statement of waiver of the right to remain silent or the right to counsel is usually strong
proof of the validity of that waiver."). Defendant was advised that in order for the Detectives to
interview the Defendant, he would have to sign a form waiving his Miranda rights. Detective
Sendek read each individual right to the Defendant, who then signed and initialed each right as it
was read to him. Defendant at no time indicated that he did not wish to answer any of these
questions or to remain silent. (N.T. 1/9/2015 p. 17). Defendant did not ask any questions in
regards to his waiver of rights and was fully cooperative. (N.T. 1/9/2015 p. 21) Defendant
knowingly, intelligently and voluntarily waived his Miranda rights contained in the form.
CONCLUSION:
On April 11, 2014 Detective Adam Sendek advised Breon Lawrence of his Miranda
rights by providing him with a written Form containing each Miranda right. Detective Sendek
read aloud the first right on the form, passed the form to Breon Lawrence to sign, then read the
next right, and repeated until all rights were read and signed by Breon Lawrence. At that time
the Defendant waived each of his Miranda rights. At no time did Breon Lawrence ask Detective
3
The Waiver ofRights Form was admitted into evidence without objection as Exhibit CS-1. (N.T. 1/9/15 p. 36).
10
Sendek any questions regarding his Miranda rights, nor did he express any con.fusion as to
anything that was explained to him. Detective Sendek witnessed Breon Lawrence sign the
Waiver of Miranda Rights Form, indicating he had read his Miranda rights and understood them.
By signing the Form, the Defendant indicated that he was willing to answer questions without an
attorney present. Breon Lawrence explicitly waived his Miranda rights. This waiver was
knowingly and intelligently made. Detective Sendek and Detective Bothwell never threatened or
promised anything to Breon Lawrence in connection with providing his statements. Breon
Lawrence provided voluntary statements.
Consequently, this Court ultimately finds that there was no unlawful action of law
enforcement in violation of the Defendant's rights under the 4th and 14th Amendments to the
United States Constitution, or under Article I, Section 8 of the Pennsylvania Constitution. The
Court finds that based on the totality of the circumstances, the Defendant made a knowing,
intelligent and voluntary waiver of his Miranda rights and his statements are admissible at trial.
WHEREFORE, Defendant's Omnibus Pre-Trial Motion is DENIED. Any and all of the
Defendant's statements made on April 29, 2014 are admissible at Trial in this matter.
A Trial in the above-captioned matter is scheduled for August 3, 2015 at 9:00 A.M. in
Courtroom 2.
11