J-A13031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
CHRISTOPHER FREEMAN
Appellant No. 866 WDA 2013
Appeal from the Judgment of Sentence January 9, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015155-2010
BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 30, 2015
Christopher Freeman appeals from the judgment of sentence imposed
on January 9, 2013, in the Court of Common Pleas of Allegheny County,
made final by the denial of post-sentence motions on April 24, 2013. On
October 25, 2012, a jury convicted Freeman of second-degree murder,
robbery of a motor vehicle, burglary, and criminal conspiracy to commit
burglary.1 The court sentenced Freeman to an aggregate term of life
imprisonment. On appeal, Freeman claims the court erred by failing to
suppress a statement he made to police and with respect to two evidentiary
____________________________________________
1 18 Pa.C.S. §§ 2502(b), 3701(a), 3502(a), 903(a)(1), respectively. J-A13031-15
issues.2 After a thorough review of the submissions by the parties, the
certified record, and relevant law, we affirm the judgment of sentence.
The facts and procedural history are as follows: During the late
evening on July 6, 2010, Freeman went over to the house of a friend, James
Lyle, to hang out on the porch, play video games, and smoke marijuana.
N.T., 10/23/2012, at 102. Lyle’s home is located at 3124 Sacramento
Avenue, Pittsburgh, Pennsylvania in the Sheraden section of the city. The
victim, Ben Lewis, was neighbors with Lyle, and his house was located at
3126 Sacramento Avenue. He apparently approached the two men,
mumbled something, and Freeman asked the victim to repeat what he had
said. Id. at 104. Lyle heard the victim say “you” and “nigger.” Id.
Freeman became visibly upset and the victim retreated to his house. Id. at
105. Freeman then left Lyle’s home. Id.
Several hours later, Lyle was in his dining room, at his computer,
when he noticed motion-sensor lights go on at the victim’s house. Id. at
107. He heard three loud bangs and looked out the window. Lyle observed
three men in dark clothing, including Freeman, standing outside the victim’s
2 Based on the nature of Freeman’s claims, we have reordered them in our analysis.
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home. Id. Freeman, who had a shirt covering the lower half of his face,3
told Lyle, “You didn’t see anything.” Id. at 109. He then pulled a gun from
his waistband, and pointed it at Lyle. Id. Lyle closed his blinds and went
back into his dining room. Id. at 110. Lyle then heard the sound of both of
the victim’s vehicles, a red Chevy pickup truck and a blue Pontiac Sunbird,
drive off. Id.4
The next morning, Lyle went to the victim’s home and saw that the
front door had been damaged and the air conditioning unit was hanging out
the window. Id. at 111. He opened the door slightly and observed the
victim on the ground. Id. at 112. He called out the victim’s name, heard no
response, and went back to his house to call 911. Id.
Detective Christine Williams of the City of Pittsburgh Police
Department responded to the scene and found the victim dead, as a result of
two gunshot wounds to the shoulder and chest. Id. at 37-38. The victim
also suffered from blunt force trauma to his scalp, at the top and back of his
head. Id. at 87. Detective Williams indicated the interior of the residence
3 Lyle testified he recognized Freeman based on his hair, height, eyes, voice, and because he had on the same clothes as earlier in the evening. Id. at 110-111. 4 Two other witnesses, Joyce Maust and Iesha Griffin, testified that they lived on the same street as the victim and Lyle, and they saw both of the victim’s cars driving off down the street. Id. at 55, 66. Griffin also stated that she saw two people in the Pontiac and one person in the truck. Id. at 67.
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looked like it had been ransacked, with furniture overturned, the doorjamb
pulled away from the frame of the door, and a large sliding window hanging
out the window frame. Id. at 35. Detective Williams also found three live
bullet casings, and two spent bullet casings in the same room. Id. at 36.
Police officers issued a “be on the lookout” report for the victim’s two
vehicles. Id. at 52.
That same day, Detective John Lewis was taking part in an unrelated
narcotics investigation near the entrance to Sheraden Park when he
observed two men standing near to a red pickup truck talking to a third
man, who was behind the wheel of a blue Pontiac. N.T., 10/24/2012-
10/25/2012, at 189, 192. Detective Lewis identified Freeman and
Christopher Hunter as the two men standing outside the truck and the driver
of the Pontiac as Marshineak Manning. Id. at 193-194. The detective saw
Manning stop the car and talk to the two other men for a couple of minutes
before driving off. Id. 192, 197. Freeman was taken into custody as part of
that unrelated investigation. He was searched incident to arrest and a set of
keys was seized. Id. at 200. The car and the truck were found and
subsequently determined to be the victim’s missing vehicles. The keys
found on Freeman fit in the lock and ignition for the red truck. Id. at 251-
253.
When the officers investigating the victim’s murder learned that
Freeman had been arrested near the victim’s truck, they asked to speak with
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him on July 8, 2010. Id. at 228-230. He agreed to speak without a lawyer
and signed a Police Interrogation Warning Form. Id. at 230. During the
interrogation, Freeman maintained he did not know the victim, nor was he
familiar with the street where the victim lived. Id. When asked about the
truck, Freeman said he was never with a red truck and did not know
anything about a red truck. Id. at 231. He denied talking to anyone inside
a blue Pontiac or ever being in Sheraden Park. Id. The investigating
detective, James McGee, then asked Freeman, “‘Well, if you didn’t have
anything to do with the red pickup truck, why did you have the keys that
belonged to the red pickup truck?’” Id. Freeman said he had found those
keys in Sheraden Park. Id. When confronted with the fact that he had just
said that he had never been in the park, Freeman responded, “Well, I mean
over by the high school.” Id. at 232. After questioning, Freeman was not
arrested for the murder.
Also during this time, Lyle did not tell the police about the events that
transpired the night before because he was “scared.” N.T., 10/23/2012, at
113. Shortly after the incident, Lyle said that a man approached him and
threatened him not to tell police what he knew about the murder. Id. at
114-115. The man also told Lyle that he had to send money to post
Freeman’s bond for his arrest on the other charges and to put money in
Freeman’s “book.” Id. at 115. Lyle paid the bond, but the threats and
demands for money continued. Id. at 152. In mid-October 2010, tired of
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the threats and demand for payments, Lyle went to the police, telling them
what he knew about Freeman and the night in question. Id. at 118. Lyle
also identified Manning as the individual that threatened him and forced him
to send money to Freeman. Id. at 121.
Based on this evidence, Freeman was arrested for Lewis’s murder on
October 15, 2010. Although Freeman verbally agreed to waive his Miranda5
rights, he refused to sign the Police Interrogation Warning Form, stating he
was not comfortable signing the form. Id. at 237. With respect to the night
in question, Freeman again denied any knowledge of the victim, the street
where the victim lived, Lyle, and even Manning. Id. at 237.
Freeman’s first jury trial was held on March 6, 2011 to March 13,
2011, but ended in a mistrial.6 His second jury trial began on October 23,
2012. Two days later, the jury convicted Freeman of second-degree murder,
robbery of a motor vehicle, burglary, and conspiracy to commit burglary.
The jury found him not guilty of robbery (serious bodily injury) and carrying
a firearm without a license.7 On January 9, 2013, the court sentenced
Freeman to life imprisonment without the possibility of parole for the murder
conviction, a concurrent five-year term for the robbery charge, and a ____________________________________________
5 Miranda v. Arizona, 384 U.S. 436 (1966). 6 The court determined a juror had conducted inappropriate internet research related to the case. See N.T., 3/6/2011-3/13/2011, at 491-492. 7 18 Pa.C.S. §§ 3701(a)(1)(i) and 6106(a)(1).
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concurrent two-year term for the burglary conviction. The court imposed no
further penalty with respect to the conspiracy charge. Freeman filed a post-
sentence motion, challenging the jury instructions, which was denied on
April 24, 2013. This appeal followed.8
In his first argument, Freeman claims the trial court erred in denying
his motion to suppress his statements made to the police during a custodial
interrogation on October 15, 2010, because he did not voluntarily,
knowingly, and intelligently waive his Miranda rights under the totality of
the circumstances. Freeman’s Brief at 40. Freeman acknowledges that a
waiver of rights does not have to be in writing. Id. at 41. However, relying
on Commonwealth v. Youngblood, 307 A.2d 922 (Pa. 1973) and United
States v. Nielsen, 392 F.2d 849 (7th Cir. 1968), he states that although he
verbally waived his Miranda rights prior to the interrogation, his
subsequent actions established he did not knowingly and voluntarily waive
his rights. Freeman’s Brief at 40. Freeman points to the following: (1) he
expressed that he was “not comfortable” signing the waiver document; and
(2) he denied knowing anything and answered each question in the
negative. Id. at 47-48. He contends these circumstances should have
8 On May 30, 2013, the trial court ordered Freeman to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following several extensions of time, Freeman filed a concise statement on April 30, 2014. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 28, 2014.
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raised a flag with the investigating detective because Freeman had
previously signed the form at the July interrogation but then refused to sign
the form at the October questioning. Id. at 48. Moreover, Freeman states
he was under arrest and he was only 18 years old at the time of the October
interview, which resulted in a coercive environment. Id. at 50-51. Freeman
concludes his statements were unduly prejudicial because they were used by
the Commonwealth as evidence of his consciousness of guilt. Id. at 52-53.
The standard of review an appellate court applies when considering an order denying a suppression motion is well established. An appellate court 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. Commonwealth v. Russo, 594 Pa. 119, 126, 934 A.2d 1199, 1203 (2007) (citing Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004)). Where the record supports the factual findings of the suppression court, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id. It is also well settled that the appellate court is not bound by the suppression court’s conclusions of law. Id. (citing Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455 (2003)). However, [w]hether a confession is constitutionally admissible is a question of law and subject to plenary review. Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879, 881 (1998).
Thus, this Court does not, nor is it required to, defer to the suppression court’s legal conclusions that a confession or Miranda waiver was knowing or voluntary. Instead, we examine the record to determine if it supports the suppression court’s findings of fact and if those facts support the conclusion that, as a matter of law, Appellant knowingly and intelligently waived his Miranda rights. Preliminarily, we note:
Regardless of whether a waiver of Miranda is voluntary, the Commonwealth must prove by a
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preponderance of the evidence that the waiver is also knowing and intelligent.
Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” The inquiry has two distinct dimensions. First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.
Commonwealth v. Cephas, 361 Pa. Super. 160, 522 A.2d 63, 65 (Pa. Super. 1987) (emphasis in original).
In the Interest of T.B., 2010 PA Super 197, 11 A.3d 500, 505- 506 (Pa. Super. 2010).
Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012), aff’d, 105
A.3d 1194 (Pa. 2014).9
The trial court must assess the voluntariness of a confession based on the totality of the circumstances, looking at the following factors: (1) the duration and means of interrogation; (2) the defendant’s physical and psychological state; (3) the conditions attendant to the detention; (4) the attitude of the interrogator; and (5) “any and all other factors that could drain a person’s ability to withstand suggestion and coercion.”
Commonwealth v. Harvey, 812 A.2d 1190, 1198-1199 (Pa. 2002), quoting Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998). (Footnote Continued Next Page)
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In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), cert. denied,
540 U.S. 1115 (2004), the Pennsylvania Supreme Court reviewed its prior
holdings in Commonwealth v. Bussey, 404 A.2d 1309 (Pa. 1979)
(plurality), and Commonwealth v. Hughes, 639 A.2d 763 (Pa. 1994),
regarding the requirement of an explicit waiver of Miranda rights. In
Bomar, the Supreme Court departed from Bussey and its progeny,
indicating it was not a majority opinion and therefore, it did not constitute
binding precedent. Bomar, 826 A.2d at 883, n.13. Instead, the Bomar
court set forth the following:
An explicit statement of waiver after being advised of [one’s] Miranda rights … is not necessary to a finding of waiver under the Fifth Amendment. The pertinent question is whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. Waiver can be clearly inferred from the actions and words of the person interrogated.
Id. at 843 (citations and quotations marks omitted).
Subsequently, in Commonwealth v. Baez, 21 A.3d 1280, 1286 (Pa.
Super. 2011), appeal denied, 37 A.3d 1193 (Pa. 2012), a panel of this Court
reiterated the holding in Bomar that an explicit statement of wavier of
Miranda rights is not required. Further, this Court explained, “[A]fter a
defendant is given his or her Miranda rights, a statement by the defendant _______________________ (Footnote Continued)
“Moreover as factfinder, it is within the suppression court’s sole province to pass on the credibility of witnesses and the weight to be accorded their testimony. The factfinder is free to believe all, some, or none of the evidence presented.” Commonwealth v. Griffin, 785 A.2d 501, 505 (Pa. Super. 2001) (citations omitted).
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that he understands those rights followed by the answering of questions
posed by the interrogating officer constitutes a sufficient manifestation of a
defendant’s intent to waive those rights so as to satisfy state constitutional
protections.” Baez, 21 A.3d at 1286.10
Turning to the suppression hearing, which occurred prior to Freeman’s
first trial, Detective MeGee testified to the following:
Q. And when you arrested [Freeman], what did you do then?
A. He was brought to our office, and once he was at the office, he was informed that he was under arrest for the murder of Ben Lewis, and at that time we presented him with a preinterrogation warning form. This form explains his rights to an attorney, and if he wants to talk to us without an attorney.
Once the form was read to Mr. Freeman, he answered “yes” to the four questions, and then the form was given to him to read and then to sign it.
10 In Baez, supra, the trial court held the defendant had not expressly waived his rights because (1) the police did not ask him if he was willing to waive his rights, and (2) he did not execute a written waiver of his rights. On appeal, this Court followed the pronouncement in Bomar and concluded:
[N]either of these factors is a prerequisite for finding that a defendant has expressly waived his or her rights. The only difference between Bomar and the case before us is that in Bomar, the defendant twice indicated that he understood his rights whereas here, Defendant indicated so only once and then proceeded to answer the officer’s questions. We are satisfied that this too constitutes a sufficient manifestation of an intent to waive one’s Miranda rights.
Baez, 21 A.3d at 1286.
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After Mr. Freeman read the form, he said he wasn’t comfortable with signing the form, but he was willing to talk to us without an attorney.
…
Q. Detective McGee, how did you go about explaining to [Freeman] his constitutional rights?
A. The rights were read off of the form. I went over each question, word for word, to Mr. Freeman, and at the end of each question I asked if he understood it and he said he did. At that point he answered “yes.”
We went to the next question. Same thing. Read the question to him, he answered “yes” to all four questions, and then I said, after [I] was done reading the form to him, the form was given to Mr. Freeman to read it himself and once he read it I told him I needed him to sign it. He stated he was willing to speak to us without an attorney, but he wasn’t comfortable with the signing.
Q. The final question in the series of questions that: Knowing these rights, are you willing to waive your right and answer questions without the presence of a lawyer?
A. That is correct.
Q. And how did he respond?
A. He said, yes, he was.
Q. And you wrote that on your form?
A. Yes.
Q. And then where he was asked to sign his signature you wrote “refused?”
Q. Was he then agreeable to talking to you about what you wanted to interview him about?
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A. Yes, he was.
Q. Were any threats or promises made to him to induce him to waive his right?
A. No, ma’am.
Q. Now, you had previously interviewed him a couple months earlier; is that right?
Q. And did he on that occasion also waive his rights as explained to him on that form?
A. He did.
Q. Did he appear to be clear headed and not under the influence of any substances?
A. Yes, ma’am.
N.T., 3/6/2011-3/13/2011, at 5-8. Furthermore, on cross-examination, the
following exchange took place:
Q. What did you take his refusal to mean?
[A]. That he was willing to speak with us without an attorney, but he didn’t want to sign the form. He knew his rights, and knowing his rights, he was willing to speak to us without an attorney, but he didn’t want to sign the form.
Q. Did the thought even occur to you, Detective, that by refusing to sign the form, he was indicating he wasn’t willing to execute an official waiver of his rights?
A. No, sir.
Q. By the way, the substance of that statement from October 15th, would it be fair to say that there were no admissions in that statement?
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A. I mean, he admitted – Well, he said he knew nobody. He didn’t know anything about it. He didn’t admit to anything, but he denied everything.
Q. He denied everything?
Q. He didn’t make any affirmative confession to committing the offense?
Id. at 10-11.
In denying Freeman’s motion to suppress, the trial court found the
following:
On March 2, 2012, the Friday before jury selection was to begin on Monday, Freeman’s lawyer filed a 4 sentence motion to suppress. He sought to exclude an alleged statement homicide detectives obtained from Freeman after his arrest on October 15, 2010. Freeman claimed his statement was not a “knowing, intelligent and voluntary decision”. To rebut this assertion of illegality, the government solicited the testimony from the homicide detective who spoke with Freeman. He was the only witness. His testimony consumed a mere 10 pages of transcript. [Detective] McGee told the Court he arrested Freeman pursuant to a warrant. He brought Freeman to the police station and read him a listing of rights that Freeman had. After each question, Freeman said “Yes”. The form was then handed to him. McGee testified it appeared as if Freeman read the form. Then Freeman said he wasn’t comfortable signing the form but he was willing to talk without an attorney.
The unique factual nugget from this case is that this was not the first time Freeman spoke with police about this matter. He was questioned on July 7, 2010. On that occasion, Freeman had no problem signing the form. Here, on October 15 th, he did not sign the form. The defense attempts to use the juxtaposition of these two polar opposite facts as contributing to
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Freeman not waiving his rights as set forth in the Miranda v. Arizona decision.
The government, through the testimony of [Detective] McGee, discharged its burden.7 [Detective] McGee read the warnings to Freeman and he received an affirmative answer after each one. Freeman was then provided the opportunity to read the form. By all appearances he did. When asked to sign the form memorializing his oral answers, he chose not to. But, in conveying his unwillingness to sign the form, he said he was willing to speak to law enforcement without an attorney. These facts, when viewed through the lens of precedent, show no error by this Court in denying the request to suppress. See, Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011), reargument denied, 2011 Pa. Super. LEXIS 2220, appeal denied, 2012 Pa LEXIS 77 (Pa. 2012)(“[A]fter a defendant is given his or her Miranda rights, a statement by the defendant that he understands those rights followed by the answering of questions posed by the interrogating officer constitutes a sufficient manifestation of a defendant’s intent to waive those rights so as to satisfy state constitutional protections.”), citing, Commonwealth v. Bussey, 404 A.2d 1309 (Pa. 1979); Commonwealth v. Hughes, 639 A.2d 763 (Pa. 1994) and Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003). 7 The Court notes Freeman’s simplistic motion fails to raise a state constitutional claim. In fact, there is no mention of any constitutional provision that was violated. The only level of specificity comes in the [Statement of Errors], III. Nevertheless, the Court views Freeman’s claim as raising a 5th Amendment violation only.
Trial Court Opinion, 7/28/2014, at 3-5 (record citations omitted).
We agree with the court’s finding. Upon careful review of the record
and precedent, we conclude Freeman manifested an understanding of his
Miranda rights and a desire to waive them, despite not signing the waiver
document. As Detective McGee testified, he gave Freeman his Miranda
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warnings and Freeman orally agreed to waive those rights and speak to the
detective without an attorney present. While Freeman indicated he was
“uncomfortable” signing the waiver document, he did not express that he
was “uncomfortable” speaking without an attorney. Likewise, during the
entire interrogation, Freeman never stopped the questioning or indicated
that he might want to talk to an attorney. Moreover, Freeman did not
appear to be under the influence of drugs or alcohol, did not argue that the
police threatened him in any way, and had prior contact with the police
based on the July interview. It also bears emphasizing that Freeman did not
make an affirmative confession, in that he denied all knowledge and
involvement related to the events on the night in question. As such, one can
reasonably conclude Freeman’s decision to waive his Miranda rights was
voluntarily, knowingly and intelligently made.11
Furthermore, we find Freeman’s reliance on Nielsen and Youngblood
is misplaced. In Nielsen, the defendant was arrested and charged with
aiding and abetting the transportation in interstate commerce of a stolen
11 See also Commonwealth v. Cohen, 53 A.3d 882 (Pa. Super. 2012) (finding defendant’s conduct during his first interrogation with the police manifested an understanding and valid waiver of his Miranda rights when he freely spoke to the investigating detective based on the following: (1) he had prior experience with the criminal justice system; (2) his behavior during the first interrogation demonstrated his recognition and invocation of his rights; (3) he refused to answer when the detective asked him if he understood his Miranda rights, thereby acknowledging his right to remain silent; and (4) he ended the interrogation when he no longer wished to talk).
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motor vehicle which he knew was stolen, in violation of 18 U.S.C. §§ 2,
2312. He was then given Miranda warnings twice, first at his house and
then at the F.B.I. office. Nielsen, 392 F.2d at 851. The defendant read a
statement of these rights, which were contained in a “waiver of rights” form.
“According to the agent, the defendant then said: ‘I am not going to sign
this document. I have an attorney, * * * and I am not signing anything,
including this form, until I have occasion to talk to [my attorney].’” Id. The
agent then “offered to let the defendant call his attorney, but the defendant
declined, saying, ‘it could wait until later on in the morning.’” Id. The
defendant then told the agent that the questioning could proceed. Id.
Following this statement, the agent said that he asked the defendant five
questions concerning his knowledge about another suspect and the stolen
car. “To all questions, the defendant gave negative answers.” Id. On
appeal, the United States Court of Appeals for the Seventh Circuit reversed,
stating:
Here the defendant’s refusal to sign the waiver form, followed by an apparent willingness to allow further questioning, should have alerted the agents that he was assuming seemingly contradictory positions with respect to his submission to interrogation. Instead of accepting the defendant’s equivocal invitation, the agents should have inquired further of him before continuing the questioning to determine whether his apparent change of position was the product of intelligence and understanding or of ignorance and confusion. However, no further inquiry took place. In the absence of such an inquiry, we are compelled to conclude that the defendant’s negative responses to the questions asked him were not made after a knowing and intelligent waiver of his rights. Consequently, the trial court erred in admitting the testimony of the subsequent interrogation.
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Id. at 853.
In Youngblood, the defendant was charged with murdering his
sister’s husband. While in custody, he was given the standard Miranda
warnings and at that time, he said he did not wish to say anything until he
had talked with his sister. Youngblood, 307 A.2d at 924. After the
defendant’s sister was brought into the room, the warnings were re-read to
the defendant. The defendant indicated he wanted an attorney and the
questioning stopped. The sister then left, stating she would return with an
attorney. Several minutes later, “a detective entered the interrogation room
where the defendant had been left alone and began to fill out an ‘intelligence
summary’ consisting of the defendant's name, age, address, employment,
and other background information of general nature. After answering two or
three questions on the form, the defendant told the detective he wanted to
recount everything that had happened.” Id. He said “the only reason he
had not done so sooner was in order to satisfy his sister, who was concerned
and tired, so that she would return home and rest.” Id. Without a further
reading of the Miranda warnings, the defendant confessed to killing his
brother-in-law. On appeal, citing Nielsen, the Pennsylvania Supreme Court
reversed and granted a new trial based on the following:
[Defendant], a 15-year-old youth “of mildly defective intelligence”, had been in police custody for several hours and was the prime suspect in the murder of his brother-in-law. He had already once elected to remain silent and to have his sister seek to find an attorney. When he suddenly changed his mind
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and exhibited a willingness to talk, the police should have been alert to the danger of accepting a statement without making as certain as possible that the suspect understood his rights and wished to waive them.… Whatever positive inference concerning appellant’s comprehension of his rights can be drawn from his initial choice to remain silent and to seek the services of an attorney is undermined by the complete change of face which came only a few minutes later. While it is true that the reversal of defendant’s position was initiated by him, his explanation that his sister was tired and that he only wanted her to go home hardly suffices as proof of a knowing and intelligent waiver of constitutional rights.
Id. at 927. Unlike the defendants in Nielsen and Youngblood, Freeman
never invoked his right to stop the interrogation by requesting an attorney
at any point during the questioning. Accordingly, both cases are factually
distinguishable from the present case. Therefore, Freeman’s first argument
fails.
In his second argument, Freeman claims the trial court abused its
discretion by prohibiting defense counsel from impeaching Lyle with
evidence that in 2008, Lyle was convicted of aggravated assault and criminal
solicitation to rape and murder his own mother. Freeman’s Brief at 24.
Freeman states:
While not classified as a crimen falsi conviction, this evidence nevertheless should have been admitted to impeach Lyle’s testimony that he did not immediately disclose to police what he had seen out of a fear for his family’s safety. Additionally, such evidence would have bolstered the defense’s argument that Lyle possessed an ulterior motive for eventually coming forward to police.
Id. Moreover, Freeman asserts:
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Lyle “opened the door” to questions regarding his alleged concern for his family members when he repeatedly volunteered this information to explain why it took him three-months to speak to police. Because any definition of “family” would include one’s mother, Lyle’s alleged concern for his family would have been directly called into question by his conviction for soliciting the rape and murder of his own mother.
Id. at 29-30. Additionally, Freeman argues the evidence shows that Lyle
may have feared that the police would suspect him in connection with the
victim’s death and test for the presence of his DNA at the scene. Id. at 31.
We begin with our well-settled standard of review:
“Questions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court’s rulings regarding the admissibility of evidence absent an abuse of that discretion.” Commonwealth v. Russell, 2007 PA Super 376, 938 A.2d 1082, 1091 (Pa. Super. 2007). An abuse of discretion is not merely an error of judgment; rather, discretion is abused when “the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record.” Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060, 1076 (Pa. 2002).
Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014).
Impeachment evidence is evidence which is presented as a means of attacking the witness’ credibility. There are several principal ways to attack a witness’ credibility: evidence offered to attack the character of a witness for truthfulness, evidence offered to attack the witness’ credibility by proving bias, interest, or corruption, evidence offered to prove defects in the witness’ perception or recollection, and evidence offered to contradict the witness’ testimony.
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Commonwealth v. Palo, 24 A.3d 1050, 1055-1056 (Pa. Super. 2011)
(citation omitted), appeal denied, 34 A.3d 828 (Pa. 2011).
Pennsylvania Rule of Evidence 609 addresses impeachment of a
witness by evidence of a conviction, in pertinent part, as follows:
Rule 609. Impeachment by evidence of conviction of crime
(a) In General. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement.
Pa.R.E. 609(a). Moreover, Pennsylvania Rule of Evidence 608 governs
evidence regarding a witness’s character for truthfulness or untruthfulness
and provides:
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Opinion testimony about the witness’s character for truthfulness or untruthfulness is not admissible.
(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),
(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness’ conduct; however,
(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests)
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of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.
Pa.R.E. 608. Lastly, we are also guided by the following:
“Even if a crime would not in and of itself be crimen falsi, we would consider it as such if it was committed in part through the use of false written or oral statements.” Commonwealth v. Vitale, 445 Pa. Super. 43, 664 A.2d 999 (Pa. Super. 1995), appeal denied, 544 Pa. 607, 674 A.2d 1071 (1995).
Additionally, “Cross-examination may be employed to test a witness’ story, to impeach credibility, and to establish the witness’ motive for testifying.” Commonwealth v. Robinson, 507 Pa. 522, 526, 491 A.2d 107, 109 (1985). “A witness may be cross-examined as to any matter tending to show the interest or bias of that witness.” Commonwealth v. Nolen, 535 Pa. 77, 83, 634 A.2d 192, 195 (1993). “It is particularly important that, where the determination of a defendant’s guilt or innocence is dependent upon the credibility of a prosecution witness, an adequate opportunity [must] be afforded to demonstrate through cross-examination that the witness is biased.” Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992).
Commonwealth v. Hyland, 875 A.2d 1175, 1186 (Pa. Super. 2005),
appeal denied, 890 A.2d 1057 (Pa. 2005).
Here, the trial court found the following:
Before cross-examination of Lyle began, the jury was removed. Defense counsel sought permission to cross-exam Lyle about a 2008 conviction for aggravated assault and solicitation to commit assault, rape and murder. The supposed victim of those crimes was his mother, according to the proffer. The government’s response referenced the Court’s prior ruling in the first trial that ended in a mistrial. That ruling did not take place during the first trial but during resolution of some oral motions in limine. The government’s opposition was two-fold. This crime does not denote dishonesty or false statement and thus Rule 609 excludes it. The government also argued, alternatively, that Rule 608 prohibits specific instances of conduct to impeach.
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Case law interpreting Pa.R.E. 609 has ruled a conviction for aggravated assault is not a crime denoting dishonesty or false statement. Commonwealth v. Burton, 417 A.2d 611, 613- 614 (Pa. 1980) (“Assault with intent to kill and murder are not [crimen falsi] crimes.[” ]); Commonwealth v. Grimm, 378 A.2d 377, 380 (Pa. Super. 1977) (“[C]onvictions showing assaultive or disorderly conduct do not involve false statement or dishonesty. They are completely irrelevant to the issue of the witnesses’ veracity. It was, therefore, improper for the court to allow this form of impeachment.”); Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa. Super. 2003) (“[W]e detect no basis upon which to find that the trial judge erred or abused his discretion in refusing to allow defense counsel to cross examine the victim about his prior conviction for aggravated assault.”); Commonwealth v. Moore, 715 A.2d 448, 452 (Pa. Super. 1998) (“[B]ecause Moore’s previous aggravated assault conviction is not in the nature of crimen falsi and does not fall within the exceptions related to other crime evidence, the Commonwealth could not have introduced this conviction.”). Lyle’s conviction is not a crime denoting dishonesty or false statement and was properly excluded under Rule 609.
This past event in Lyle’s life is also excludable under Rule 608(b)(1). That Rule prohibits attacking a witness’s character for truthfulness with extrinsic evidence of specific instances of conduct. What Freeman wanted to do here was directly at odds with this rule. This Court acted consistent with Pennsylvania law when it prevented Freeman from cross-examining this witness on his prior conviction for aggravated assault and solicitation to commit assault, rape and murder. Commonwealth v. Hanible, 30 A.3d 426, 456 (Pa. 2013) (“Pa.R.E. 608(b)(1) precludes attacks upon the character of a witness based upon specific instances of conduct of the witness.”).
Trial Court Opinion, 7/28/2014, at 7-9 (record citations and footnotes
omitted).
We again agree with the trial court’s rationale. The court properly
concluded that pursuant to Rule 609 Lyle’s prior convictions were
inadmissible because aggravated assault and solicitation to commit assault,
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rape and murder are not crimes involving dishonesty or false statement.
See Pa.R.E. 609; see also Commonwealth v. Patterson, 91 A.3d 55, 68-
69 (Pa. 2014), cert. denied, 135 S. Ct. 1400 (U.S. 2015). Likewise,
pursuant to Rule 608, specific instances of his conduct, other than crimen
falsi, were also inadmissible. See Pa.R.E. 608. Accordingly, we find that the
trial court did not err when it refused to admit evidence of the witness’s prior
convictions.
Furthermore, any error would have been harmless12 because as
Freeman points out in his brief, he was able to cast doubt on the credibility
of Lyle’s story by establishing that Lyle failed to implicate Freeman before
the alleged threats began and after the threats ended, and by eliciting
testimony that the victim and Lyle had an altercation a day or two before the
incident. See Freeman’s Brief at 30-31. Likewise, as Freeman indicates, ____________________________________________
An error is harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. An error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. Thus, ‘for a reviewing court to conclude that an error is harmless, it must be convinced beyond a reasonable doubt that the error did not contribute to the verdict.’ The burden of establishing that an error is harmless beyond a reasonable doubt rests with the Commonwealth.
Commonwealth v. Rush, 605 A.2d 792, 794 (Pa. 1992) (citations omitted; italics in original).
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evidence of Lyle’s crimen falsi convictions were introduced, including his
2004 federal conviction for access device fraud,13 which would have also
impeached his credibility.14 Moreover, of great importance, Lyle did not
testify that the threats were specifically about his mother; rather he stated
the initial threat was “[Manning] knows where my family is.” N.T.,
10/23/2012, at 114. Indeed, we find Lyle’s convictions involving his mother
are irrelevant because Manning threatened Lyle with harm to his entire
family, and Lyle paid the money to protect them. Therefore, the probative
value of evidence did not outweigh the prejudicial effect. Accordingly,
Freeman’s second argument fails.
In his final argument, Freeman complains the court abused its
discretion by prohibiting defense counsel from impeaching Lyle with
evidence that he knowingly submitted a fraudulent letter to a United States
District Court judge, Alan N. Bloch, during a supervised release hearing in
2006. Freeman’s Brief at 35. By way of background, and as stated above,
Lyle was convicted in 2004 for the federal crime of access device fraud. He
was sentenced to a term of incarceration followed by a period of supervised
release. At a December 13, 2006, supervised release hearing, it was
purported that Lyle submitted a fraudulent letter from his employer. The
13 N.T., 10/23/2012, at 122, 154-157. 14 See Freeman’s Brief at 33-34.
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federal court revoked Lyle’s supervised release and sentenced him to a
period of two years’ incarceration. N.T., 3/6/2011-3/13/2011, at 33-34.
Freeman submits that although the fraudulent letter incident is not a
conviction per se, it was the functional equivalent of a conviction,
considering it was an act of dishonesty under oath and, therefore, satisfies
the purpose under Rule 609 as an extension of his underlying initial crimen
falsi conviction. Id. at 37-39.
We are guided by the evidentiary standard of review and rules as set
forth above. The trial court pointed out that the evidence at issue was
raised prior to the first trial but was not discussed at the second trial. Trial
Court Opinion, 7/28/2014, at 5-6. While the court did not find waiver, it did
opine:
With waiver surely lurking in the weeds, the exclusion of this evidence was a basic application of Pa.R.E. 609. Subsection (a) says that evidence “that the witness has been convicted of a crime … must be admitted if it involved dishonesty or false statement.” Pa.R.E. 609(a). Lyle was not convicted of a crime arising from his supervised release hearing. Without the underlying conviction, the Rule 609 door is shut and will not open for Freeman.
Id. at 6 (emphasis in original).
We agree with the trial court. Regardless of waiver, it is apparent this
letter did not result in a conviction. Rather, it was an improper act that led
to Lyle’s parole being revoked on an underlying crime, and evidence of the
underlying conviction already was admitted. See also Commonwealth v.
Treadwell, 911 A.2d 987, 990-991 (Pa. Super. 2006) (noting Pennsylvania
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Rule of Evidence 609(b) was modeled after and differs only slightly from
Federal Rule of Evidence 609(b), and that the “federal courts have
determined Federal Rule 609(b) does not equate probation or parole with
confinement.”). Therefore, the court did not abuse its discretion in excluding
this evidence. Accordingly, Freeman’s final argument fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date:7/30/2015
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