Com. v. Gazzam, J. ( 2020 )

J-S49010-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH GEORGE GAZZAM :
:
Appellant : No. 1409 WDA 2019
Appeal from the Judgment of Sentence Entered July 31, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007428-2018
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 23, 2020
Appellant, Joseph George Gazzam, appeals from the judgment of
sentence entered on July 31, 2019, following his bench trial convictions for
third-degree murder, endangering the welfare of a child, and recklessly
endangering another person.1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On November 12, 2017, at approximately 12:30 p.m., police
responded to an emergency telephone call from Appellant that his
four-month-old daughter was unresponsive at his residence in Mount
Lebanon, Pennsylvania. Despite efforts at resuscitation, the child died a short
time later at a local hospital. Appellant told various witnesses that the child
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(c), 4304(a)(1), and 2705, respectively.
J-S49010-20
had fallen off a bed. A subsequent autopsy revealed that the victim suffered
blunt force trauma to the head and trunk, subdural hemorrhages and
hematomas to the brain, lacerations to her heart, liver, and kidney, and a
fractured arm. The medical examiner opined that those injuries were not
consistent with a fall from a bed, that the victim died from blunt force trauma
to the head and trunk, and that the manner of death was homicide. Relevant
to this appeal, as part of their investigation, Allegheny County Police
Department Detectives James Fitzgerald and Tony Perry conducted recorded
interviews of Appellant on separate occasions on November 12, 2017 and
November 13, 2017. Appellant admitted that he struck the child multiple
times with his fists and then made an emergency telephone call once she
stopped breathing.
The Commonwealth subsequently charged Appellant with criminal
homicide, endangering the welfare of a child, and recklessly endangering
another person. On April 29, 2019, Appellant entered a general guilty plea to
the charges. The trial court held a two-day, non-jury, degree-of-guilt trial
commencing on June 17, 2019. Prior to trial, Appellant filed a motion in limine
to preclude the Commonwealth from presenting the recorded police interviews
at trial, arguing that his admissions were coerced. The trial court denied
relief and allowed the Commonwealth to present the recorded police
interviews as evidence at the degree-of-guilt trial. At the conclusion of trial,
the court found Appellant guilty of the aforementioned offenses. On July 31,
2019, the trial court sentenced Appellant to an aggregate term of 21 to 42
-2-
J-S49010-20
years of imprisonment followed by a consecutive term of 8 years of probation.
This timely appeal resulted.2
On appeal, Appellant presents the following issue for our review:
Did the [trial] court err when it denied [Appellant’s] request to
preclude the use of video [recordings] and [written] transcripts
from his [second] police interrogation because [Appellant’s]
statement was involuntary and a result of police coercion and
therefore a violation of his rights to due process? Specifically, due
to the nature of the questioning, and since the detectives provided
the majority of the information during the interrogation, was not
[Appellant] badgered into making a confession in this case?
Appellant’s Brief at 6.
In sum, Appellant argues:
[Appellant] was alone with [the victim] when she died. Therefore,
[Appellant’s] statements to police were the only evidence as to
how death occurred. However, in part due to his status as an
Army vet[eran] with [Post Traumatic Stress Disorder (PTSD)],
[Appellant] drank a lot of beer. He also sometimes did cocaine.
Even with this self-medication, at times his PTSD got the best of
him and [Appellant] would black out. The trial court heard that
[Appellant] was usually not a violent person - about the only time
[Appellant] was violent was when he was drinking or in a blackout
episode.
Police detectives in this case knew that [Appellant] bore
responsibility for [the victim’s] death. Nevertheless, over the
course of two days, the detectives interrogated [Appellant]. They
repeatedly refused to accept [Appellant’s] answers that he “did
not remember” or “didn’t know” what had happened. Detectives
____________________________________________
2 The trial court denied Appellant’s timely filed post-sentence motions by order
entered on August 12, 2019. Thereafter, Appellant filed a timely notice of
appeal on September 11, 2019. On September 12, 2019, the trial court
directed Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). After permitted extensions, Appellant filed a
timely Rule 1925(b) statement on October 30, 2019. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on January 6, 2020.
-3-
J-S49010-20
talked and talked at [Appellant], telling him to “act like a man”
and “take care of” his daughter by confessing. [Appellant] could
not confess to things he [did not recall]. Yet officers spoke with
[Appellant] for many uninterrupted minutes at a time, giving some
details of the case and making factual assumptions. As one
example, [Appellant] did not remember taking [the victim] from
her bassinet, but a detective got him to say that he had “yanked”
[her] with great force from the bassinet.
The totality of the circumstances, including that the detectives
took [Appellant] to the police station straight from his daughter’s
death bed without even letting him go home to change or to eat,
render any and all statements made by [Appellant] the product of
their manipulative and coercive tactics. [Appellant’s] motion in
limine seeking to preclude the use of this evidence at his trial
should have been granted. Further, as this was the only evidence
offered below, this error is not harmless beyond a reasonable
doubt. [Appellant] is entitled to a new trial at which this evidence
is excluded.
Appellant’s Brief at 25-26 (emphasis in original).
Initially, we note that the Commonwealth claims that Appellant “waived
his current claim challenging the voluntariness of his confession because he
failed to present it in his [m]otion in [l]imine to the [t]rial [c]ourt.”
Commonwealth’s Brief at 20. The Commonwealth contends Appellant “did
not specifically claim that the confession was involuntary” and, instead,
“argued that the confession should be excluded for materially different
reasons.” Id. at 22. Upon our review, Appellant sought to exclude both police
interviews, predominantly on hearsay grounds. However, Appellant also
averred, "detectives tried to entice/ coerce/ compel [Appellant] to make
admissions." Motion in Limine, 3/18/2019, at *4, ¶ 13 (unpaginated). The
trial court held an evidentiary hearing and ultimately addressed the
voluntariness of Appellant’s statements to police in its Rule 1925(a) opinion.
-4-
J-S49010-20
For these reasons, we conclude that Appellant properly raised the issue before
the trial court, decline to find waiver, and proceed to examine the merits of
Appellant’s current claim.
Our standard of review, when addressing a challenge to the denial of a
suppression motion, is as follows:
We may consider only the Commonwealth's evidence 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 record
supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error. An appellate court, of course, is not bound
by the suppression court's conclusions of law.
It is the sole province of the suppression court to weigh the
credibility of witnesses and the suppression court judge is entitled
to believe all, part or none of the evidence presented.
It is well-established that when a defendant alleges that his
confession was involuntary, the inquiry becomes 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.
Voluntariness is the touchstone inquiry when deciding a motion to
suppress a confession, and voluntariness is determined upon
review of the totality of the circumstances. In assessing the
totality of the circumstances, the suppression court should
consider: the duration and means of the interrogation; the
defendant's physical and psychological state; the conditions
attendant to the detention; the attitude exhibited by the police
during the interrogation; and all other factors that could drain a
person's ability to resist suggestion and coercion.
Commonwealth v. Fitzpatrick, 181 A.3d 368, 373–374 (Pa. Super. 2018)
(internal citations, quotations, and inapplicable footnote omitted).
Here, the trial court determined:
-5-
J-S49010-20
Clearly, in both interrogation sessions [Appellant] was given
appropriate [] warnings [pursuant to Miranda v. Arizona, 384
U.S. 436 (1966)] and he voluntarily waived the right to remain
silent, which was appropriately documented. He was given water
and cigarettes. He was not handcuffed or shackled. He was
permitted to use the bathroom. He was never physically
threatened or abused. There is no evidence that [Appellant], who
was 30 years old, was physically or mentally disabled such that
he was unable to understand the implications of [] speaking to the
detectives. [Appellant’s] contention that he simply agreed with
whatever the detectives said is contradicted by the record. The
fact that the detectives told Defendant that, given his total recall
of all other events, his contention that he blacked out was not
credible and his statements that [the victim] fell from the bed
were not consistent with the nature and extent of her injuries[.
Moreover, the circumstances do] not warrant a finding that
[Appellant’s] statements were coerced. Considering the totality
of the circumstances, there was no basis to conclude that
[Appellant’s] confession was involuntary or coerced and,
therefore, the motion to exclude the confession was appropriately
denied.
Trial Court Opinion, 1/6/2020, at 11.
Upon review, we discern no error or abuse of discretion in the trial
court’s ruling that Appellant’s confession was voluntary and not the product
of coercion. The trial court properly examined the totality of circumstances
regarding the two police interviews, including the duration and means of the
interrogations, Appellant’s physical and psychological state, the conditions
attendant to the detentions, and the attitude exhibited by the police during
both interrogations. Appellant does not challenge those trial court
determinations. Here, there is simply no evidence that the police drained
Appellant’s ability to resist suggestion and coercion. Instead, when police
confronted Appellant with physical evidence that did not comport with his
-6-
J-S49010-20
original version of events, they continued questioning until Appellant
confessed. Based upon our review, we conclude that Appellant’s statements
to police were voluntary and properly admitted into evidence. As such,
Appellant’s evidentiary issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2020
-7-