Com. v. Bell, M.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2021
• Docket: 3399 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-A27002-20

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.

-2- J-A27002-20

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.

-3- J-A27002-20

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

7 We have reordered Appellant’s issues for ease of disposition.

-4- J-A27002-20

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)).

-5- J-A27002-20

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

-6- J-A27002-20

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?

-7- J-A27002-20

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.

-8- J-A27002-20

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.

-9- J-A27002-20

(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.

- 10 - J-A27002-20

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

- 11 - J-A27002-20

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.

- 12 - J-A27002-20

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

- 13 - J-A27002-20

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

- 14 - 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

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,

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,

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

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

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