Com. v. Bell, M. ( 2021 )

J-A27002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MICHAEL RAYMOND BELL
Appellant No. 3399 EDA 2018
Appeal from the Judgment of Sentence imposed August 1, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0006944-2017
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 22, 2021
Appellant, Michael Raymond Bell, appeals from the judgment of
sentence imposed on August 1, 20181 in the Court of Common Pleas of
Montgomery County, following Appellant’s convictions of first-degree murder,
possession of instruments of crime (“PIC”), and tampering with evidence.2
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellant purported to appeal from the November 2, 2018 order denying his
post-sentence motion. “In a criminal action, an appeal properly lies from the
judgment of sentence made final by the denial of post-sentence motions.”
Commonwealth v. Rivera, 238 A.3d 482, 489 n.1 (Pa. Super. 2020)
(quoting Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) (en banc) (citation omitted)). We have corrected the caption
accordingly.
2 18 Pa.C.S.A. §§ 2502(a), 907, and 4910, respectively.
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Appellant contends the trial court erred in denying his motion to suppress and
in refusing to deliver a requested jury instruction. Following review, we affirm.
As the trial court explained:
At approximately 8:13 p.m. on Saturday, September 23, 2017,
Norristown Police officers responded to a call that there was a
dead body inside of Appellant’s apartment at the Riverside
Apartment complex on Schuylkill Avenue in Norristown. Upon
their arrival, the officers encountered three individuals in the
parking lot: Appellant, Appellant’s girlfriend Kaitlin Oberreither,
and friend Marquis Allen. Appellant escorted the officers to his
apartment, at which time one of the officers took the keys from
Appellant to open the door for safety reasons. Upon entry, the
officers discovered a black male lying on the floor next to a couch
in the living room area with a large amount of blood. After officers
gathered preliminary information, all three witnesses agreed to go
to the police station to give a statement. After providing three
inconsistent statements to detectives, at approximately 12:45
a.m. on September 24, 2017, Appellant confessed to killing the
victim, Leroy McCray (“McCray”) with a hammer.
Appellant provided detectives with several consents to search and
also consented to provide a videotape statement. Starting at
approximately 2:26 a.m. on September 24, 2017, Appellant
provided a videotape statement, lasting approximately five (5)
minutes depicting his version of how the killing occurred in his
apartment. Law enforcement arrested Appellant and charged him
with McCray’s murder on September 24, 2017.
Trial Court Opinion, 1/14/20, at 2-3 (citations to notes of testimony, trial
exhibits, and criminal complaint omitted).3
____________________________________________
3 Appellant concedes that “[t]he facts and procedural history preceding this
appeal are undisputed and, excepting the trial court’s conclusions drawn from
such facts, [are] correctly summarized in the trial court[’]s 1925(b) Opinion.”
Appellant’s Brief at 6.
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Appointed counsel filed a motion to suppress statements made and
consents given by Appellant, contending that detectives subjected Appellant
to a custodial interrogation before reading Appellant his Miranda4 rights. The
motion sought suppression of Appellant’s statements, “including but not
limited to his video confession, and any consents to search,” as well as
evidence gathered as a result of his statements because the evidence
constituted “fruit of the poisonous tree.” Motion to Suppress, 3/12/18, at 9-
10.
The trial court conducted a hearing on March 19, 2018 to address all
pre-trial motions except motions in limine. With respect to the motion to
suppress, on May 3, 2018, the court issued its Findings of Fact and Conclusions
of Law as well as an order denying Appellant’s motion.5 The case proceeded
to trial the following day, with voir dire taking place on May 4 and opening
statements beginning on May 7.6 On May 11, 2018, the jury found Appellant
guilty of murder, PIC, and tampering with evidence.
The trial court directed a presentence investigation and a parole and
probation intervention evaluation before sentencing Appellant on August 1,
____________________________________________
4 Miranda v. Arizona, 384 U.S. 436 (1966).
5 The court’s 28-page Findings of Fact and Conclusions of Law included 76
factual findings and 40 legal conclusions. Findings of Fact and Conclusions of
Law, 5/3/18.
6The trial court disposed of several motions in limine and other pre-trial
matters by orders issued on April 30 and May 2, 2018.
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2018, to a mandatory life sentence without parole for murder, a concurrent
sentence of two and a half to five years’ incarceration for PIC, and a
determination of guilty without further punishment for tampering with
evidence. Appellant filed post-sentence motions, which were denied on
November 2, 2018. This timely appeal followed. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant asks this Court to consider two issues:
I. Whether the court should have suppressed the Appellant’s
statements because such statements were not voluntarily
provided due to the manipulative police interrogation.
II. Whether the trial court erred by failing to instruct the jury
on the castle doctrine justification defense.
1. Whether the castle doctrine justification should
have been provided because a forceful entry does
not require a physical breaking into a person’s
residence[.]
2. Whether the castle doctrine justification should
have been provided because there was no criminal
activity occur[r]ing at the time deadly force was
used related to the confrontation.
3. Whether the court’s omission of the castle doctrine
justification jury instruction resulted in prejudice to
the Appellant because he was not provided with the
presumption that deadly force was necessary.
Appellant’s Brief at 5.7
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7 We have reordered Appellant’s issues for ease of disposition.
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In his first issue, Appellant argues that evidence obtained as a result of
his statements should have been suppressed because of the manipulative
interrogation conducted by police before reading him his Miranda rights. As
this Court recently reiterated:
When we review the ruling of a suppression court we must
determine whether the factual findings are supported by the
record. When it is a defendant who has appealed, we must
consider only the evidence of the prosecution and so much of the
evidence for the defense as, fairly read in the context of the record
as a whole, remains uncontradicted. Assuming that there is
support in the record, we are bound by the facts as are found and
we may reverse the suppression court only if the legal conclusions
drawn from those facts are in error.
Commonwealth v. Copenhaver, 238 A.3d 509, 513 (Pa. Super. 2020)
(quoting Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (citation
omitted)). “Our scope of review from a suppression ruling is limited to the
evidentiary record that was created at the suppression hearing.”
Copenhaver, 238 A.3d at 513 (quoting Commonwealth v. Rapak, 138 A.3d
666, 670 (Pa. Super. 2016) (alteration and additional citation omitted)).
Further:
Where the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (quoting
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)
(alterations and additional citations omitted)).
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The crux of Appellant’s argument is that his pre-Miranda statements
should be suppressed because of manipulative police conduct, and the
statements made after he was provided Miranda warnings should be
suppressed because they constituted fruit of the poisonous tree. Having
reviewed the evidence presented by the prosecution at the suppression
hearing, including the testimony of the officers involved, we find the record
supports the trial court’s factual findings. We hereby incorporate those
findings as if fully set forth herein. Findings of Fact, 5/3/18, at ¶¶ 1-76.
Further, we find that the court properly applied the law to the facts to reach
its conclusions of law, specifically in determining that Appellant was not in
custody at the time he gave the first three parts of his written statement and
in determining that Appellant voluntarily waived his rights before providing
the fourth part of the written statement and a videotaped statement. We
hereby incorporate the trial court’s conclusions of law herein as if fully set
forth. Conclusions of Law, 5/3/18, at ¶¶ 1-39. Because the trial court properly
denied Appellant’s motion to suppress, we shall not disturb its ruling.
Appellant’s first issue fails for lack of merit.
In his second issue, Appellant asserts trial court error for failure to
deliver an instruction regarding the castle doctrine defense. Appellant argues
that “the errors of the court result from the court’s conclusion that a physical
breaking and entering is required to fulfill the [prerequisite condition
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warranting a castle doctrine instruction] under 18 Pa.C.S.A
§ 505(b)(2.1)(i)[.]” Appellant’s Brief at 23.
For context, it is helpful to consider Appellant’s statement to Detective
Richard, describing the events that occurred when McCray arrived at
Appellant’s apartment between 7:00 a.m. and 8:00 a.m. on the morning of
September 23, 2017. The trial court provided a summary of that statement
as follows:
I was in my bedroom putting on lotion and I heard my door open,
so I came out there and [McCray] was standing in my living room,
looking goofy. I asked him what he was doing. I was like, you
didn’t even call me and tell me that you were going to show up.
He was fine at first, but then once I told him that he had to leave,
that’s when he got like really belligerent and started cursing and
using foul words. He was telling me he was going to kick my ass.
I told him to just leave. When I told him that, he got in my face,
and I asked him to take a step back. I asked him again and he
pushed me, so I pushed him back. That’s when he started
swinging on me. I did what I thought was right. There was a
hammer sitting right there, and I just grabbed the hammer and I
hit him. Something came over me, and I just hit him.
***
Question: How long did it take for him to die?
Answer: About five minutes.
Question: After he died, did you move his body?
Answer: Yes. I moved him onto the couch. I don’t even know
why; I just did. I wanted to make it look like he was asleep or
something.
***
Question: How did he just walk into your apartment? Was your
door unlocked?
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Answer: No. Apparently he must have made a spare key.[8]
Trial Court Opinion, 1/14/20, at 16-17 (quoting N.T., Trial, 5/7/18, at 246-
50; Photocopy of Appellant’s Statement, Commonwealth Exhibit C-19; and
N.T., Trial, 5/8/18, at 23-26, 30).
With respect to our standard of review, in Commonwealth v.
Cannavo, 199 A.3d 1282 (Pa. Super. 2018), this Court explained:
Our standard of review in regard to a trial court’s decisions on jury
instructions is well-settled: “[O]ur standard of review when
considering the denial of jury instructions is one of deference—an
appellate court will reverse a court’s decision only when it abused
its discretion or committed an error of law.” Commonwealth v.
Galvin, 603 Pa. 625, 651, 985 A.2d 783, 788-89 (2009). “[Our]
key inquiry is whether the instruction on a particular issue
adequately, accurately and clearly presents the law to the jury,
and is sufficient to guide the jury in its deliberations.”
Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super.
2001). Appellate review of a court’s decision as to whether the
castle doctrine is applicable, however, is less clear.
Id. at 1286.
In Cannavo, the Court explained:
The castle doctrine was formalized into statute by our legislature
in 2011. Since that time, the trial court and the parties agree
there has been sparse case law addressing the applicability of the
castle doctrine. Our Supreme Court in 2016, however, provided
some clarity on the application of the castle doctrine in
Commonwealth v. Childs, 636 Pa. 322, 142 A.3d 823 (2016).
____________________________________________
8 In a text message sent by McCray to Appellant at 9:14 p.m. on the night
before the murder, McCray stated, “I got a key to open the door down stairs
so I let myself in.” Appellant texted back, “Ok.” Exhibit B to Commonwealth
Motion in Limine to Admit Text Messages, 4/16/18. That motion was granted
as unopposed by order entered on April 30, 2018.
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In Childs, although the primary issue was whether the defendant
was entitled to a castle-doctrine instruction when his trial took
place after enactment of the castle-doctrine statute, but the act
took place before enactment of the statute, our Supreme Court
noted that the Section 505(b)(2.1) presumption did not actually
alter the elements of a castle-doctrine defense. Instead,
subsection 2.1 “provides an evidentiary mechanism to aid in the
factfinder’s evaluation of the merits of a castle doctrine defense.”
Childs, 636 Pa. at 335-36, 142 A.3d at 831-32. Subsection 2.1
consequently creates a presumption that impacts the
evidentiary burden of a defendant seeking its protection as
well as the factfinder’s analysis of the evidence in order to
determine whether the defendant has established a castle
doctrine defense. It is a law that provides a method to
enforce the right of self defense as embodied by the castle
doctrine. In short, it is a procedural statute.
Id. at 1287 (quoting Childs, 142 A.2d at 833).
The castle doctrine provisions relevant to the instant case are set forth
in 18 Pa.C.S.A. § 505 (Use of force in self-protection) as follows:
(b) Limitations on justifying necessity for use of force
***
(2.1) Except as otherwise provided in paragraph (2.2), an
actor is presumed to have a reasonable belief that deadly
force is immediately necessary to protect himself against
death [or] serious bodily injury . . . if both of the following
conditions exist:
(i) The person against whom the force is used is in the
process of unlawfully and forcefully entering, or has
unlawfully and forcefully entered and is present
within, a dwelling, residence or occupied vehicle[.]
(ii) The actor knows or has reason to believe that the
unlawful and forceful entry or act is occurring or has
occurred.
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(2.2) The presumption set forth in paragraph (2.1) does not
apply if:
***
(iii) the actor is engaged in a criminal activity or is
using the dwelling, residence or occupied vehicle to
further a criminal activity[.]
***
18 Pa.C.S.A. § 505(b)(2.1), (2.2).
With guidance from the Supreme Court’s discussion of the castle
doctrine instruction in Childs, this Court in Cannavo concluded:
Viewed in this light, and considering the castle doctrine’s inclusion
within the self-defense statute, it is apparent that the castle
doctrine is an evidentiary means by which a defendant may
attempt to prove justification by self-defense. Thus, it is subject
to a similar, initial standard by which courts must assess the
appropriateness of a self-defense instruction, namely, that “a valid
claim of self-defense [or the castle doctrine] must be made out as
a matter of law, and this determination must be made by the trial
judge. Such claim may consist of evidence from whatever
source.” Commonwealth v. Mayfield, 401 Pa. Super. 560, 585
A.2d 1069, 1070 (1991) (en banc). In the case sub judice, the
trial court was tasked with determining whether Appellant made a
valid claim for the castle doctrine as a matter of law.
Subsection 2.1 requires both subsections 2.1(i) and 2.1(ii) to be
met in order for the castle doctrine to apply. See 18 Pa.C.S.
§ 505(b)(2.1) (reasonable belief of deadly force is presumed
necessary “if both of the following conditions exist” (emphasis
added)). Subsection 2.1(i) lists, inter alia, the following
requirements: (A) the victim is in the process of unlawfully and
forcefully entering, or has unlawfully and forcefully entered and is
present within, (B) a dwelling, residence, or occupied vehicle.
18 Pa.C.S. § 505(b)(2.1)(i). Subsection 2.1(ii) then provides that
the defendant must have known, or had reason to believe, that
the unlawful and forceful entry or act is occurring.
Id. at 1287-88.
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Here, the trial court rejected Appellant’s request for the castle doctrine
instruction and instead delivered a general self-protection instruction in
accordance with Section 505(a), which provides that “[t]he use of force upon
or toward another person is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion.” 18 Pa.C.S.A.
§ 505(a). As the trial court observed,
Both instructions on justification provide a presumption that a
defendant acted reasonably because both instructions explain to
the jury that the Commonwealth has the burden to prove beyond
a reasonable doubt that the defendant did not act in justifiable
self-defense once the defense is properly raised. While the castle
doctrine instruction may state the presumption more clearly, the
presumption itself is a matter of law under the applicable statute
and [defense counsel] strenuously argued that presumption to the
jury in closing.
Trial Court Opinion, 1/14/20, at 26-27 (footnote omitted).
Addressing Appellant’s argument that he presented sufficient evidence
to warrant a castle doctrine instruction, the trial court explained:
[Appellant] argues that the statutory element of forceful entry
does not actually mean forceful entry but, rather, that the entry
itself can be peaceful and the force or forceful aspect can develop
after entry. This court concluded that such a construction is
strained and does not comport with the language of the statute.
Although the statute itself does not define the term “forceful
entry,” Black’s Law Dictionary defines “force” as “power, violence,
or pressure directed against a person or thing”; “forced entry” as
“the act or an instance of someone’s getting into a building
illegally by breaking a door, window, etc.,” and “forcible entry” as
“the act of entering land in another’s possession by the use of
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force against another or by breaking into the premises.” Black’s
Law Dictionary 787, 788, 789 (11th ed. 2019).
Appellant concedes, as he must, that the evidence does not
support a finding that McCray forcefully entered Appellant’s
apartment in the early morning of September 23, 2017. Indeed,
crediting Appellant’s testimony regarding the events of that
morning, as the court must, Appellant presented no evidence to
support a finding that McCray unlawfully and forcefully entered
Appellant’s apartment.[9] Thus, the evidence did not justify the
instruction.
Id. at 30-31 (emphasis in original) (footnote omitted).
We agree. The trial court appropriately denied the request for the castle
doctrine defense because Appellant failed to satisfy the requirements of
Subsection 2.1.
We also agree with the trial court’s denial of the castle defense in light
of the fact the presumption in Subsection 2.1 does not apply if the actor is
involved in criminal activity. Id. at 31 (referring to 18 Pa.C.S.A.
§ 505(b)(2.2)(iii))). The court noted that testimony from Appellant and Ms.
Oberreither, as well as numerous text messages between Appellant and
McCray, supported a finding that the confrontation resulted from a dispute
over drugs. Id. Appellant acknowledged that he smoked marijuana on
essentially a daily basis, that he obtained his marijuana from McCray, and that
____________________________________________
9 At trial, Appellant testified that he unlocked the door to his apartment,
intending to take out his trash. However, he had to use the bathroom and did
so “for literally just 30 seconds.” N.T., Trial, 5/10/18, at 141. When he came
out of the bathroom, McCray was in the doorway. Id. at 142. There was no
suggestion that any amount of force was used by McCray to enter the
apartment after Appellant unlocked the door.
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he owed money to McCray at times for marijuana. N.T., Trial, 5/10/18, at
123-29. He drank beer and smoked marijuana with McCray in Appellant’s
apartment on the night of September 22, 2017. McCray left Appellant’s
apartment at approximately 2:30 a.m. on September 23, 2017. Id. at 131,
136-37. Appellant texted McCray four hours later, at 6:29 a.m., hoping to get
more marijuana on credit from McCray to smoke before going to work. Id. at
139. Appellant was getting ready for work when he heard someone (McCray)
in his apartment. Id. at 140-41. “The evidence showed that the confrontation
was the result of a dispute over drugs. Accordingly the court properly
concluded that the acts also did not support the castle doctrine charge because
Appellant was engaged in a criminal activity or was using his apartment to
further a criminal activity.” Trial Court Opinion, 1/14/20, at 31-32. Therefore,
whether based on the failure to prove a forceful entry, or in light of the criminal
activity taking place, the trial court did not err in denying the castle doctrine
instruction.
Although the evidence did not warrant a Section 505(b) castle doctrine
instruction, the trial court did appropriately deliver a self-defense instruction
in accordance with Section 505(a). N.T., 5/11/18, at 154-58. Appellant was
not prejudiced by the denial of an instruction unsupported by the evidence;
he properly received an instruction that comported with the evidence
presented. Finding neither abuse of discretion nor error of law in the trial
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court’s denial of a castle doctrine instruction, we shall not disturb that ruling.
Appellant’s jury instruction issue fails.
Appellant is not entitled to relief on either of his issues. Therefore, we
shall affirm Appellant’s judgment of sentence. In the event of further
proceedings relating to Appellant’s suppression motion, the parties shall
attach a copy of the trial court’s May 3, 2018 Findings of Fact and Conclusions
of Law.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/21
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Circulated 01/27/2021 02:48 PM
FINDINGS OF FACTS
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : NO. 6944-2017
v.
MICHAEL R. BELL
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PURSUANT TO RULE 581(1) OF THE
PENNSYLVANIA RULES OF CRIMINAL PROCEDURE
FINDINGS OF FACT
1. The undersigned presided over a suppression hearing on Monday,
March 19, 2018, on Defendant's March 12, 2018 Motion to Suppress
Statements Made and Consents Given by Defendant.
2. Officer Jason Hoover testified that he is currently a patrol officer
for the municipality of Norristown and has held that position for a little less
than eight (8) years.
3. Sergeant Nicholas Dumas testified that he is currently employed
with the municipality of Norristown as a patrol sergeant and has been with the
Norristown Police Department for twelve (12) years. Prior to that, Sergeant
Dumas worked as a police officer for Tullytown Borough in Bucks County and
for the New York City Police Department for a combined period of four (4) years.
4. Detective Todd Richard testified that he works for the Montgomery
County Detective Bureau and is currently assigned to the Homicide Unit,
where he has worked for just under seven (7) years. Before that, Detective
Richard worked for the Pottstown Police Department for eighteen (18) years,
where he obtained the rank of Detective Corporal.
5. At approximately 8:13 p.m. on Saturday, September 23, 2017,
Officer Hoover responded to a radio dispatch as a result of someone calling the
police to report that he discovered a body inside of his apartment.
6. Officer Hoover responded to Riverside Apartments at 104
Schuylkill Avenue in Norristown dressed in full uniform with a side arm.
7. Commonwealth Exhibit CS -1 is a copy of the Norristown Police
Incident Report from September 23, 2017, prepared by Officer Hoover, marked,
identified and admitted over Defendant's objection.'
8. After arriving at the Riverside Apartments complex, Officer Hoover
along with other officers, encountered Michael Bell ("Defendant") and two other
individuals, Kaitlin Oberreither and Marquis Allen, in a parking lot at the end
of "E" building.
9. Defendant initially told Officer Hoover that there was "a dead guy
in his apartment".
' Counsel objected on the basis that the Commonwealth did not need to refresh the officer's
recollection. The undersigned overruled the objection.
2
10. Officer Hoover described Defendant's demeanor and appearance as
calm, collected, sober and had his wits about him. Defendant did not appear
to be under any type of duress.
11. Defendant agreed to take the officers back to his apartment and
led Officer Hoover, Corporal Gergel, Officer Graham and Officer Robinson to
apartment EC9 on the third floor. Once on the third floor, there were
approximately four (4) or five (5) stairs leading up to the door of Defendant's
apartment.
12. Corporal Gergel opened the door to Defendant's apartment using
the keys provided by Defendant and the officers entered the apartment.
13. Immediately visible upon entry, Officer Hoover saw a black male
lying on or beside a couch, not moving, and blood splattered everywhere.
14. Officer Hoover participated in clearing the apartment to ensure
that there were no attackers inside or that there was no one else inside needing
assistance. After clearing the apartment, the officers moved back out into the
hallway to make calls for police resources including requests for detectives,
supervisors and the duty officer.
15. Officer Hoover approached Defendant to obtain Defendant's
biographical information for his report. Defendant and Officer Hoover stood at
the base of the stairs leading to Defendant's apartment within earshot of the
officer's supervisors who were talking at the door of the apartment.
16. During Officer Hoover's conversation with Defendant in the
hallway, Defendant spoke in a conversational tone; he appeared to be awake
3
and alert, as well as calm and collected. He did not appear to be under the
influence of any drugs or alcohol.
17. While Defendant sat on the stairs, Officer Hoover obtained his
biographical information, including full name, address, phone number, and
then on to Defendant's general timeline for the day. Officer Hoover asked
Defendant the name of the deceased male, whether he knew him, and when
Defendant was last in his apartment.
18. Defendant replied that the decedent was Leroy, with no known last
name, and that he was an occasional friend. Leroy arrived at Defendant's
apartment around 7:30 a.m. and Defendant stated that he left his apartment at
8:30 a.m. and Leroy remained at Defendant's apartment.
19. Defendant told Officer Hoover that after he left the apartment he
began walking north on DeKalb Street towards the Norristown Transportation
Center. As he passed the Norristown Transportation Center, Defendant said a
woman approached him to ask for a cigarette.
20. According to Defendant, he went with the woman to her house in
Cherry Hill, New Jersey, until his return to Norristown at approximately 3:30
p.m. that day. After returning to Norristown, Defendant met up with his
girlfriend, Kaitlin Oberreither, along Main Street and they went to a house
party on or near the 500 block of Cherry Street in Norristown.
21. Defendant told Officer Hoover that he, his girlfriend and Marquis
Allen left the party around 8:05 p.m. and returned to Defendant's apartment,
where they discovered Leroy's body inside. After seeing Leroy's body, the three
4
of them backed out of the apartment and Defendant stated that he did not
believe any of them had touched or handled anything in doing so.
22. Defendant stated to Officer Hoover that his air conditioning unit
was turned off and his door locked when he left that morning. Defendant told
Officer Hoover that Leroy was homeless, going "from couch to couch" staying
with friends and that it was not unusual for Leroy to be at Defendant's
apartment.
23. During Officer Hoover's gathering of this information, the tone was
conversational, no one raised their voice, none of the officers brandished a
firearm in Defendant's presence, no one threatened or restrained Defendant in
any way and Defendant never appeared reluctant to speak with him.
24. Officer Hoover explained that Defendant was not a suspect at that
time and that he did not advise Defendant of his rights under Miranda.2
Defendant remained awake and alert and appeared to know what he was doing
as he spoke with Officer Hoover.
25. Officer Hoover testified that it was standard protocol to ask
someone who has discovered a dead body inside of their home to provide a
written statement. When asked if he was willing to go to the police station to
give a statement, Defendant replied in the affirmative. Officer Hoover led the
way back to the parking lot and to his patrol vehicle.
26. After Officer Hoover checked Defendant to make sure he did not
have any weapons on his person pursuant to the standard protocol, he had
2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
5
Defendant sit in the back of the car and the officer got into the driver's seat and
drove to the police station. Officer Hoover did not leave Defendant sitting in
the patrol vehicle and he was not restrained except perhaps with a seatbelt
that Defendant would have chosen to fasten.
27. Because Defendant was not in custody and entering the police
department voluntarily, Officer Hoover did not take him into the building
through the enclosed sally port, which would have been the case if Defendant
was a prisoner. Instead, Officer Hoover pulled up to the patrol door on the
outside of the building and opened the backseat door for Defendant to exit the
secured vehicle.
28. Officer Hoover walked Defendant into the building and around the
corner to the roll call room. Defendant joined Kaitlin Oberreither and Marquis
Allen who were already there. Officer Hoover asked the three of them to keep
their conversation to small talk and not to discuss the incident. Officer Hoover
explained that this procedure is standard protocol in an attempt to keep
witnesses from discussing an event, which may color their own recollection of
what they saw or heard or did not see or hear.
29. None of the three witnesses were physically restrained or detained.
All were provided with water and Officer Hoover walked Defendant out to use
the restroom. Additionally, the door from the roll call room out into a hallway
was left open. Officer Hoover testified that he would have walked Defendant
out of the building and allowed him to leave if Defendant had expressed a
6
desire to do so because they had Defendant's contact information and he was
free to leave.
30. Officer Hoover described Defendant as calm, almost tranquil, and
cooperative. The tone was conversational and with no emotion.
31. Sergeant Dumas also responded to Defendant's apartment at
Riverside Apartments on September 23, 2017. At approximately 9:52 p.m.,
Sergeant Dumas returned to the Norristown Police Department and met with
Defendant in the roll call room to request Defendant's consent to search his
apartment for scene processing.
32. Commonwealth Exhibit CS -2 is a copy of the Montgomery County
Consent to Search form that Defendant signed on September 23, 2017, to
search his apartment, marked, identified and admitted without objection.
33. Sergeant Dumas testified that he filled out the form in front of
Defendant after Defendant had given his consent and then Defendant signed
the form. No one threatened Defendant or promised him anything in return for
his consent.
34. Sergeant Dumas believed that Officer Hoover and a female witness
were in the roll call room at the time. Sergeant Dumas obtained Defendant's
consent prior to Defendant's interview. Sergeant Dumas was wearing his
detective uniform consisting of a polo shirt and khakis.
35. Sergeant Dumas described the tone as conversational, no one
raised their voice and Defendant never indicated that he did not want anyone
to search his apartment. Sergeant Dumas knew of no reason to think that
7
Defendant did not understand what was happening when the Sergeant
requested Defendant's permission for the search.
36. Sergeant Dumas agreed with Counsel that law enforcement's
purpose for searching Defendant's apartment was to obtain evidence to be used
in prosecution of the homicide.
37. Detective Richard received a request to respond to the Norristown
Police Department at approximately 9:03 p.m. on September 23, 2017, to
assist with a homicide investigation.
38. Commonwealth Exhibit CS -3 is a copy of the Montgomery County
Detectives Homicide Supplemental Report prepared by Detective Richard based
on his response to the Norristown Police Department, marked, identified and
admitted without objection.
39. Detective Richard testified that he arrived at the Norristown Police
Department at approximately 9:45 p.m. whereupon he was quickly briefed and
assigned with Norristown Detective Stephen Sowell to interview Defendant.
40. At approximately 9:50 p.m. Detective Richard and Detective Sowell
went to the roll call room and found Defendant seated with the other witnesses.
Detective Richard introduced himself to Defendant, shook hands, and told
Defendant that he was there to speak with him. Defendant responded "ok" and
the two detectives walked with Defendant to the detective office area of the
police station to interview Defendant. Defendant was not in shackles or
handcuffs, nor was he physically led to the open detective area.
8
41. The open detective office space contains five (5) cubicles. The door
into this area remained open during the interview and other officers may have
entered and exited while the three (3) men were in the area but no one else
stayed. Detective Richard testified that he sat behind a computer at one desk,
Defendant sat in a chair next to him, and Detective Sowell sat behind his own
desk facing Detective Richard and Defendant.
42. Detective Richard was not aware of any other statements
Defendant had given up to that time. While the detectives walked with
Defendant to the open office area, they made small talk. Detective Richard
regarded Defendant as a witness who could provide law enforcement with
information so that they could begin to investigate the homicide. Detective
Richard testified that he wanted as much information as he could obtain to
investigate the murder.
43. Detective Richard testified that Defendant's demeanor was
completely cooperative, talkative and casual Defendant appeared to be awake
and alert and not under the influence of drugs or alcohol.
44. Detective Richard was dressed in a polo -type shirt and tan khaki
pants, while Detective Sowell was wearing shorts and a t-shirt. Neither
detective had a weapon on them during the interview.
45. Detective Richard explained to Defendant that he would type a
question, read it to Defendant word-for-word and then type Defendant's answer
word-for-word. When the interview was finished, Detective Richard would print
out the statement and Defendant would have an opportunity to review it and
9
make any corrections, additions, deletions or whatever to his statement.
Detective Richard did the typing and asked the questions of Defendant.
46. Commonwealth Exhibit CS -4 is a copy of all of the statements
Detective Richard took from Defendant, marked, identified and admitted
without objection.
47. The first portion of the interview began at approximately 10:04
p.m. and consisted of six (6) pages of questions and answers, which begin as
follows:
Q: Michael, I am Detective Richard of the Montgomery County
Detective Bureau and present with me is Detective Sowell from the
Norristown Police Department. We would like to speak with you
about the death of Leroy McCray, Is this okay?
A: Yes
Q: Can you read and write English?
A: Yes
Q: Are you currently under the influence of drugs or alcohol?
A: No
Q: Are you providing this statement to me voluntarily?
A: Yes
(Investigative Interview Record of Michael Raymond Bell, 9/23/17 at 1,
Commonwealth Exhibit CS -4).
48. The last questions and answers in the first portion of the
statement were as follows:
Q: Is everything you told me in this statement truthful?
A: Yes
Q: Will you now review this statement and make sure it's accurate?
A: Yes
Q: How were you treated by the police today?
10
A: Good.
(Investigative Interview Record of Michael Raymond Bell, 9/23/17 at 6,
Commonwealth Exhibit CS -4).
49. The first portion of the interview ended at 10:57 p.m., at which
time Detective Richard printed out the statement consisting of pages 1 through
6 and gave it to Defendant to review, make any changes and sign. Defendant
signed at the bottom of each page without making any changes.
50. Detective Richard gave Defendant a break while Detective Richard
went to discuss the statement with Lieutenant Bradbury, who was the on -call
Lieutenant in charge that night. Defendant went to use the restroom and take
a break, returning with Detective Sowell to the open detective area when
Detective Richard returned.
51. At approximately 11:22 p.m. Detective Richard asked Defendant if
it would be okay to reopen his statement and ask a few more questions.
Defendant replied that would be okay. Detective Richard asked about
Defendant's cell phone and a few follow up questions about where Defendant
had been earlier in the day.
52. The second portion of the interview ended at 11:48 p.m. and
consisted of pages 7 through 9 in the typewritten statement, which were given
to Defendant to review, make any changes and sign at the bottom of each page.
53. Detective Richard gave Defendant another break and went to speak
with Lieutenant Bradbury, who was coordinating the incoming information.
11
Defendant stayed in the detective work area with Detective Sowell during this
break.
54. When Detective Richard returned, he asked Defendant if they
could reopen his statement and ask a few more questions. Defendant agreed.
The third portion of the statement started at 12:13 a.m. of September 24,
2018, and concluded at 12:20 a.m. Defendant reviewed and signed the single
page ten after making a change in the middle of the page.
55. Detective Richard gave Defendant another break while Detective
Richard went to speak with Lieutenant Bradbury to let Lieutenant Bradbury
know that the detectives were going to find an office in the Norristown Police
Department to continue the interview. Detective Richard testified that it had
become apparent to him from what Defendant was saying and from what
Lieutenant Bradbury was telling him, that Defendant had not been truthful in
some of his prior statements.
56. Detective Richard returned to the open detective work area and
explained to Defendant that they would be moving into an office. While
Detective Richard was locating an office, Defendant was provided a drink and
food. Detective Richard, Detective Sowell and Defendant then moved down the
hallway into a lieutenant's office, which had a desk and a couple of chairs.
57. Detective Richard read and explained Defendant's constitutional
rights from a form that Defendant signed, dated and answered two (2)
questions indicating that he understood his Miranda or constitutional rights.
Commonwealth Exhibit CS -5 is a copy of the Miranda warnings form that
12
Detective Richard read verbatim to Defendant, with Defendant's answers hand
written in response to two (2) questions, marked, identified and admitted
without objection.
58. Detective Richard described Defendant's demeanor during this
time as unchanged, conversational, there was small talk, and there was joking
at some points. Defendant gave no indication that he did not understand his
constitutional rights, that he did not want to answer any more questions or
that he wanted a lawyer present.
59. After Defendant signed the constitutional rights form, Detective
Richard confronted him with the information that Detective Richard did not
believe the previous statements that Defendant gave and the reasons why. The
tone remained conversational. No voices were raised. No one threatened
Defendant and he was not restrained in any way. Defendant paused for
perhaps ten (10) seconds and then replied that he had killed Mr. McCray with a
hammer.
60. Defendant still appeared awake and alert. Defendant gave the
detectives no reason to believe that he did not understand what was
happening. Defendant did not indicate that he did not want to talk to the
detectives any more and Defendant did not ask for a lawyer.
61. Detective Richard asked Defendant if they could resume the
interview and Defendant replied that they could. The final portion of the
interview began at 12:45 a.m. on September 24, 2017, as follows:
Q: Michael, the time is now 12:45 AM and it's past midnight so the
date is 9/24/2017. Detective Sowell and I have been speaking
13
with you and several minutes ago I stopped our conversation and
explained to you your constitutional rights. Is that correct?
A: Yes
Q: Did you understand these rights?
A: Yes
Q: Did you sign a form agreeing to waive these rights?
A: Yes
Q: With these rights in mind are you willing to speak with us further?
A: Yes
Q: Have you been provided with food and breaks?
A: Yes
Q: Michael did you lie to us in your original statements?
A: Yes
Q: Why did you lie?
A: Because I was scared
Q: What exactly did you lie about?
A: That I met a girl and went to New Jersey and that Terry had
arranged for Leroy to come there
Q: Did you kill Leroy McCray?
A: Yes I did
Q: How did you kill him?
A: I used a hammer
(Investigative Interview Record of Michael Raymond Bell, 9/24/17 at 11,
Commonwealth Exhibit CS -4).
62. Detective Richard testified that once Defendant told him that he
killed Mr. McCray with a hammer, Defendant was no longer free to leave. Up to
that point, Defendant was free to leave the police station.
14
63. During the final portion of Defendant's statement, Detective
Richard sought Defendant's consent for additional searches to which
Defendant agreed.
64. Commonwealth Exhibit CS -6 is a copy of the Montgomery County
Consent to Search form that Detective Richard filled out for Defendant's
consent to search his Galaxy Note 5 cellular phone, marked, identified and
admitted without objection.
65. Commonwealth Exhibit CS -7 is a copy of the Montgomery County
Consent to Search form that Detective Richard filled out for Defendant's
consent for Detective Richard to obtain a buccal swab or DNA sample from
Defendant, marked, identified and admitted without objection.
66. Commonwealth Exhibit CS -8 is a copy of the Montgomery County
Consent to Search form that Detective Richard filled out to obtain Defendant's
consent for detectives to take photographs of Defendant's body, marked,
identified and admitted without objection.
67. Commonwealth Exhibit CS -9 is a copy of the Montgomery County
District Attorney's Office Consent to Videotape Statement form that Detective
Richard filled out to obtain Defendant's consent to provide a videotape of
Defendant's statement, marked, identified and admitted without objection.
68. Detective Richard read and explained each form to Defendant and
after obtaining Defendant's consent, filled out the top part and requested that
Defendant sign each form and put the date and time on each one. Detective
Richard also signed each form.
15
69. The final portion of Defendant's statement concluded at 1:54 a.m.
at which time Defendant Richard printed out pages 11 through 16 and asked
Defendant to review the pages, make any changes and sign each one.
Defendant did not make any changes to the final portion of his written
statement. Defendant signed and put the date at the bottom of each page.
Defendant told Detective Richard that he had been treated "great" by the police
that day. (Investigative Interview Record of Michael Raymond Bell, 9/24/17 at
16, Commonwealth Exhibit CS -4).
70. When the written statement had concluded, Detective Richard took
photographs of Defendant's face, arms and hands. In addition, Detective
Richard collected a buccal swab from the inside of Defendant's cheek.
71. Detective Richard informed Defendant before he gave the
videotaped statement that Defendant was no longer free to leave.
72. Because they needed more space for the camera, Detective
Richard, Detective Sowell and Defendant moved back into the roll call room to
take Defendant's videotaped statement. The videotaped statement began at
2:26 a.m. and concluded at 2:31 a.m.
73. Commonwealth Exhibit CS -10 is a copy of Defendant's Videotape
Statement on a CD, marked, identified and admitted without objection. The
Commonwealth requested to publish the video and without objection. Exhibit
CS -10 was viewed in open court.
74. Detective Richard explained that on the video, Detective Sowell was
seated to his right, Detective. Henry was playing the part of Mr. McCray as
16
Defendant recounted the incident and Lieutenant Bradbury was working the
camera directly across from Detective Richard. Detective Henry and Lieutenant
Bradbury were dressed similarly to Detective Richard in a polo shirt and
khakis. None of the law enforcement officers were carrying weapons.
75. Detective Richard testified that the video was the best
demonstration of Defendant's demeanor throughout that night. No one raised
their voice, none of the detectives brandished a firearm or threatened
Defendant in any manner. Throughout the encounter with Defendant, he was
not restrained in any way until after the video was completed and he was put
in a cell.
76. Detective Richard testified that at no time did Defendant appear
reluctant to speak with him. At no time did Defendant indicate that he did not
want to speak with the detectives. Defendant did not ask for a lawyer at any
time. Defendant appeared awake and alert. At no time did Defendant indicate
that he did not understand what he was doing or what he was being asked.
CONCLUSIONS OF LAW
1. When a defendant files a motion to suppress, the burden is on the
Commonwealth to demonstrate by a preponderance of the evidence that the
challenged evidence was properly obtained. Pa.R.Crim.P. 581; Commonwealth
v. Galendez, 27 A.3d 1042, 1046 (Pa.Super. 2011) (en bane).
2. As it relates to this case, the Commonwealth bears the burden of
proving by a preponderance of the evidence that a defendant's statement or
17
confession is voluntary. Commonwealth v. Harrell, 65 A.3d 420, 434 (Pa.Super.
2013) (citing Commonwealth v. Nester, 551 Pa. 157, 162-63, 709 A.2d 879, 882
(1998).
3. When ruling on a suppression motion, the suppression court is
required to make findings of fact and conclusions of law as to whether evidence
was obtained in violation of a defendant's constitutional rights and must
determine whether the Commonwealth has established by a preponderance of
the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 581;
Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980).
4. "[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. Baker, 24 A.3d 1006, 1015 (Pa.Super. 2011); accord
Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa.Super. 2012).
5. Long -settled Pennsylvania law provides that there must be both
custody and interrogation in order to trigger the safeguards of Miranda v.
Arizona, 384 U.S. 436, 471-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Commonwealth v. Housman, 604 Pa. 596, 625, 986 A.2d 822, 839 (2009);
Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.Super. 2013).
6. "In deeming an interaction to be a custodial interrogation, 'the
police officer's subjective intent does not govern the determination but rather
the reasonable belief of the individual being interrogated.' " Cruz, supra.
7. The mere fact that a police investigation has focused on a specific
person does not automatically trigger 'custody' thus mandating Miranda
18
warnings for that person's statements to be deemed voluntary. Commonwealth
v. Levanduski, 907 A.2d 3, 24 (Pa.Super. 2006) (en banc).
8. The Cruz Court reiterated:
An individual is deemed to be in custody for Miranda purposes
when he "is physically denied ... his freedom of action in any
significant way or is placed in a situation in which he reasonably
believes that his freedom of action or movement is restricted by the
interrogation." The court must consider the totality of
circumstances, including factors such as "the basis for the
detention; the duration; the location; whether the suspect was
transferred against his will, how far, and why; whether restraints
were used; the show, threat or use of force; and the methods of
investigation used to confirm or dispel suspicions."
Id. at 1004 (citations omitted); accord Baker, supra at 1019-20. See also
Commonwealth v. Templin, 568 Pa. 306, 317-18, 795 A.2d 959, 966 (2002)
(citing factors to consider including "the duration and means of the
interrogation; the physical and psychological state of the accused; the
conditions attendant to the detention; the attitude of the interrogator; and any
and all other factors that could drain a person's ability to withstand suggestion
and coercion.").
9. The Baker Court explained the standard and the test in general as
follows:
The standard for determining whether an encounter with the police
is deemed "custodial" or police have initiated a custodial
interrogation is an objective one based on a totality of the
circumstances, with due consideration given to the reasonable
impression conveyed to the person interrogated. Custodial
interrogation has been defined as "questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his [or her] freedom of action in any
significant way." "Interrogation" is police conduct "calculated to,
expected to, or likely to evoke admission." When a person's
inculpatory statement is not made in response to custodial
19
interrogation, the statement is classified as gratuitous, and is not
subject to suppression for lack of warnings.
The test for determining whether a suspect is being subjected
to custodial interrogation so as to necessitate Miranda
warnings is whether he is physically deprived of his freedom
in any significant way or is placed in a situation in which he
reasonably believes that his freedom of action or movement is
restricted by such interrogation.
Said another way, police detentions become custodial when, under
the totality of the circumstances, the conditions and/or duration of
the detention become so coercive as to constitute the functional
equivalent of arrest.
The fact that a police investigation has focused on a particular
individual does not automatically trigger "custody," thus requiring
Miranda warnings.
Id. (citations omitted); accord Commonwealth v. Johnson, 615 Pa. 354, 374, 42
A.3d 1017, 1028 (2012).
10. Interrogation is defined as questioning initiated by law enforcement
or "police conduct calculated to, expected to, or likely to evoke admission" or an
incriminating response. Commonwealth v. Umstead, 916 A.2d 1146, 1149,
1152 (Pa.Super. 2007) (citations omitted).
11. However, "the definition of interrogation can extend only to words
or actions on the part of police officers that they should have known were
reasonably likely to elicit an incriminating response." Id. at 1150 (citation
omitted).
20
12. Moreover, asking for biographical information or general
background questions does not constitute interrogation within the meaning of
Miranda. Cruz, supra at 1004; Umstead, supra at 1150.
13. In Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, cert. denied
sub nom. Lyons v. Pennsylvania, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014), the
Pennsylvania Supreme Court explained:
As a general rule, because of the inherently coercive nature of
police custodial interrogation, statements elicited from an accused
in that environment are inadmissible unless the accused was
informed of and, inter alia, voluntarily waived his privilege against
self-incrimination and the right to counsel. Miranda v. Arizona,
384 U.S. 436, 471-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);
Commonwealth v. DeJesus, 567 Pa. 415, 428-30, 787 A.2d 394,
401-03 (2001). Waiver is made voluntarily if the decision to make
it is the product of a free and unconstrained choice.
622 Pa. at 114, 79 A.3d at 1066.
14. The Lyons Court continued:
In determining whether a waiver is valid, a suppression court looks
to the totality of the circumstances surrounding the waiver,
including but not limited to the declarant's physical and
psychological state, the attitude exhibited by the police during the
interrogation, and any other factors which may serve to drain one's
powers of resistance to suggestion and coercion. DeJesus, 567 Pa.
at 429-30, 787 A.2d at 402-03.
Id.
15. In Commonwealth v. Mitchell, the Pennsylvania Supreme Court
instructed that the totality of the circumstances must be considered in
evaluating the voluntariness of a confession.
The determination of whether a defendant has validly waived his
Miranda rights depends upon a two -prong analysis: (1) whether the
waiver was voluntary, in the sense that defendant's choice was not
the end result of governmental pressure, and (2) whether the
21
waiver was knowing and intelligent, in the sense that it was made
with full comprehension of both the nature of the right being
abandoned and the consequence of that choice.
588 Pa. 19, 53-54, 902 A.2d 430, 451 (2006).
16. Finally, in Templin, supra, addressing the voluntariness of the
waiver prior to the defendant's statement in that case, the Pennsylvania
Supreme Court reasoned as follows:
In determining voluntariness, the question "is not whether the
defendant would have confessed without interrogation, but
whether the interrogation was so manipulative or coercive that it
deprived the defendant of his ability to make a free and
unconstrained decision to confess." Nester, 551 Pa, at 163, 709
A.2d at 882; Jones, 457 Pa. at 430, 322 A.2d at 124 (same); see
also Miller, 796 F.2d at 604 ("The question in each case is whether
the defendant's will was overborne when he confessed"). "By the
same token, the law does not require the coddling of those accused
of crime. One such need not be protected against his own innate
desire to unburden himself."
568 Pa. at 317, 795 A.2d at 966.
17. Instantly, Defendant asserts that his statements outside of his
apartment and in the open detective working area must be suppressed because
they were not voluntarily given.
18. Specifically, Defendant proffers that these initial statements were
the product of coercion provided without Miranda warnings. In addition,
Defendant argues that the subsequent statement and consents given after the
Miranda warnings are fruit of the poisonous tree.
19. Considering the totality of the circumstances surrounding that
statements Defendant provided at the scene as determined above, the
22
undersigned concludes that Defendant was not in custody at the time of these
statements, nor was he interrogated.
20. These circumstances include the following facts:
A. The officers and detectives responded to Defendant's
apartment building in response to a call made by Defendant and his two
friends;
B. Defendant voluntarily led officers up to his apartment and
provided his key for them to unlock the door to his apartment;
C. Defendant was not a suspect;
D. Once Defendant was comfortably seated on the steps leading
to his apartment, Officer Hoover began taking down Defendant's
biographical information and asking general questions to assist in the
homicide investigation;
E. Officer Hoover did not ask any specific questions about
Defendant's involvement, rather the inquiries were made to determine
who may have had access to Defendant's apartment that day;
F. Defendant was awake and alert, calm and cooperative,
appeared to understand what was happening and never appeared
reluctant to provide the requested information;
G. The officers did not brandish any weapons during this time
and the conversation remained calm with no raised voices;
H. Defendant was not placed in restraints or physically led
anywhere;
23
I. Defendant voluntarily agreed to accompany Officer Hoover to
the police facility to assist with the investigation into Leroy McCray's
death and provide a written statement;
J. Officer Hoover did not ask any questions on the way to the
police station;
K. Officer Hoover brought Defendant into the police station
through the patrol door instead of the enclosed sally port and walked
him to the open roll call room; and
L. Defendant sat with his friends while he waited to give his
written statement.
21. This Court found Officer Hoover's testimony to be very credible.
22. Based upon these circumstances, no custodial interrogation took
place leading up to Detective Richard's arrival. Accordingly, Miranda warnings
were unnecessary.
23. Considering the totality of the circumstances leading up to the
fourth and final portion of Defendant's written statement, the undersigned
concludes that Defendant was not in custody at the time of the first, second
and third portions of his written statement.
24. These circumstances include the following facts:
A. Detective Richard and Detective Sowell arrived in the roll call
room dressed in plain clothes and unarmed;
B. Defendant voluntarily followed the detectives into an open
detectives' office area;
24
C. Defendant was not placed in restraints or physically led
anywhere;
D. The door to the area remained open throughout this time;
E. Defendant was not a suspect;
F. Defendant's demeanor was cooperative, talkative and casual;
G. Defendant appeared to be awake and alert and not under the
influence of drugs or alcohol;
H. Defendant specifically stated he was giving the statement
voluntarily;
I. Defendant was provided breaks to use the restroom, water
and food; and
J. Defendant was free to leave the police station.
25. In addition, Detective Richard and Defendant maintained a
conversational tone during the interview. The detectives did not raise their
voices at any time. The detectives did not threaten Defendant or make any
promises to him to obtain his statement. Defendant had not asked to leave
and had not asked to stop the questioning.
26. Based upon these circumstances, no custodial interrogation took
place leading up to and through the first three portions of Defendant's
statement.
27. Accordingly, Miranda warnings were unnecessary during the first
three portions of the interview.
25
28. Once Detective Richard suspected that Defendant may have not
been truthful in his first three statements about where and with whom
Defendant had been earlier that day, the Detective explained to Defendant that
they would be moving into an office.
29. Once the detectives and Defendant had moved into the lieutenant's
office for the fourth portion of Defendant's written statement, the undersigned
concludes that the interview became a custodial interrogation necessitating
Miranda warnings.
30. Detective Richard read Defendant his constitutional rights under
Miranda before asking any additional questions.
31. Defendant acknowledged his rights as advised by Detective
Richard and as he read on the waiver form.
32. Defendant reviewed and signed the waiver form.
33. Defendant did not ask to speak with an attorney.
34. In view of the totality of the circumstances surrounding the waiver,
this Court concludes that Defendant voluntarily waived his rights to remain
silent, to speak with an attorney before continuing with the questioning and to
refuse to answer any questions.
35. These circumstances include the following facts:
A. Defendant was 34 years old on September 23, 2017;
B. Defendant was awake and alert and gave the detectives no
reason to believe that he did not understand the questions or what was
happening;
26
C. Defendant displayed no indicia of impairment;
D. There was no undue delay and
E. Defendant's responses to the questions were appropriate.
36. In addition, Defendant acknowledged that Detective Richard and
the other detectives had treated him "great"; the tone of the detectives
remained calm and conversational throughout the night; Defendant did not ask
to end the interview; Defendant did not request to speak with an attorney; at
no time did the detectives threaten Defendant or promise Defendant anything
in exchange for his written statement, for the consents to search or for his
consent to videotape his statement and Defendant took breaks to eat and drink
and use the restroom.
37. This Court found Detective Richard's testimony credible.
38. Hence, Defendant voluntarily waived his constitutional rights
under Miranda and that waiver is valid.
39. Having considered the totality of the circumstances surrounding
Defendant's statements to the law enforcement officers, the undersigned opines
that Defendant waived his Miranda rights and made his final portion of his
written statement as well as his videotaped statement voluntarily, and that the
consents he provided were the product of free and unconstrained choice.
40. Nothing in this opinion prohibits Defendant from arguing the
voluntariness of his statement to the jury.
27
41. An appropriate order follows.
BY THE COURT:
Copies sent on 05/03/18 to:
By E -Mail:
Deputy District Attorney Thomas W. McGoldrick
Assistant District Attorney Douglas Lavenberg
John F. Walko, Esquire, Defense Counsel
By First -Class Mail:
Michael R. Bell, Montgomery County Correctional Facility
Judicial Secretary
28