J-S23040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : CURTIS KINGWOOD, : : Appellant : No. 3567 EDA 2014
Appeal from the Judgment of Sentence December 12, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0002620-2013
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED May 19, 2017
Curtis Kingwood (“Kingwood”) appeals from the judgment of sentence
imposed following his conviction of second-degree murder, robbery,
conspiracy to commit robbery, carrying a firearm in public, and possession of
an instrument of crime (“PIC”).1 We affirm.
The trial court summarized the relevant factual and procedural history
as follows:
On September 11, 2011, Christopher Lee (“Lee”) was playing dice with Dontay Chestnut [] and Kenneth Perry [] on the sidewalk on the corner of Lindenwood Street and Jefferson Street. Later that night, at approximately 7:30 p.m., Faheem Davis (“Davis”) and [] Kingwood approached the men playing dice[,] and Davis pulled out a gun and demanded their money. A struggle ensued between Lee and Davis[,] during which Davis fired a single shot. Davis and [] Kingwood then fled the scene in a jeep. Lee sustained one gunshot to the chest[,] and was pronounced dead [] at approximately 8:10 p.m.
1 See 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(c), 6108, 907(a). J-S23040-17
On June 5, 2014, this court heard and denied Kingwood’s Motion to Suppress a statement[,] and the matter was continued to trial. On July 28, 2014, Kingwood elected to exercise his right to a jury trial[,] and pled not guilty to the above[-]listed charges. On August 4, 2014[,] the jury found Kingwood guilty of [m]urder of the [s]econd [d]egree (H2), [r]obbery (F1), [c]onspiracy (F1), [carrying a firearm in public] (M1), and PIC (M1)[,] and sentencing was deferred to December 12, 2014. On December 12, 2014, this court sentenced Kingwood to the mandatory term of life imprisonment on the murder charge. He received no further penalty on the remaining charges. On December 19, 2014, this court received a Notice of Appeal[,] and on February 10, 2015, upon completion of the notes of testimony, Kingwood was served an Order directing him to file a concise statement of the matters complained of on appeal[,] pursuant to Pa.R.A.P. 1925(b). On May 13, 2015, this court received Kingwood’s [Pa.R.A.P.] 1925(b) response[.]
Trial Court Opinion, 12/15/15, at 1-2, 3 (paragraphs reordered, some
formatting omitted, footnote omitted).
On appeal, Kingwood raises the following issue for our review: “Did
the trial court err by denying [Kingwood’s] Motion to suppress his statement
to police?” Brief for Appellant at 3 (some capitalization omitted).
Our standard of review of a denial of suppression is whether the record supports the [suppression] court’s factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en
banc) (citation omitted).
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Kingwood contends that the suppression court erred by denying his
pretrial Motion to suppress the inculpatory statements that he made to
police while being detained. Id. at 13. Kingwood asserts that “the
Commonwealth failed to establish that [Kingwood’s] statement[s] w[ere]
voluntary, given that he was kept in the same room[,] where he had no
place to sleep for over forty hours[,] before he finally consented to give a
statement.” Id. at 22. Kingwood claims that “the delay was unjustified and
prejudicial because it led directly to [Kingwood’s] inability to refuse the
detective’s insistence that he agree to an interview and make a statement.”
Id. Kingwood argues that the Commonwealth presented no evidence
demonstrating why it was necessary to leave Kingwood alone for that period
of time, in an interview room that did not have a bed, or why a detective
other than Detective [Omar] Jenkins [(“Detective Jenkins”)] could not have
interviewed Kingwood. Id. Kingwood contends that, during the 40 hours in
which he was detained, he was not permitted to communicate with family
members and was denied cigarettes, which also compromised his ability to
resist confessing to police. Id. at 24, 25. Kingwood asserts that Detective
Jenkins was confrontational with Kingwood, called him a liar, and
interviewed him several times. Id. at 25. Kingwood claims that “his will
was overborne and [] his statement should have been suppressed because it
was not freely and voluntarily given.” Id. Finally, Kingwood argues that
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“the delay was unnecessary and that the length of the delay was
presumptively coercive ….” Id. at 27.2
In the present case, the suppression court conducted a hearing
regarding the circumstances surrounding Kingwood’s detention and
subsequent confession to police. The Commonwealth presented the
testimony of Detective Jenkins. Kingwood presented no witnesses. The
uncontracted evidence presented by the Commonwealth includes the
following.
On September 11, 2011, the date of the shooting, Detective Jenkins
was assigned to lead the investigation of the murder of Lee. N.T. 6/5/14, at
11. At 12:30 am on the morning of November 15, 2012, Kingwood was
brought by police to the homicide unit for questioning in relation to Lee’s
murder. Id. at 22. Because it was so late, Kingwood was placed in an
interview room, because Detective Jenkins was at home. Id. at 23. The
interview room is a rectangular room (approximately eight feet by twelve
2 In support of his argument, Kingwood relies on Commonwealth v. Davenport, 370 A2d 301 (Pa. 1977), and Commonwealth v. Duncan, 525 A.2d 1177 (Pa. 1987), for the proposition that the length of his detention, without more, renders his confession involuntary. See Brief for Appellant at 25-26. Notably, between 1977 and 2004, our Supreme Court adhered to a bright-line rule, under which any statement given to police more than six hours after arrest, and before arraignment, was per se inadmissible. See Davenport, 370 A.2d at 306. However, in Commonwealth v. Perez, 845 A.2d 779 (Pa. 2004), our Supreme Court determined that the per se rule was not appropriate, and reverted to a totality of the circumstances test, which we apply in this case. Perez, 845 A.3d at 785-87.
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feet), which locks from the outside, and has a rectangular table and a plastic
chair, both of which are bolted to the floor. Id. at 31-32.
Later that morning, at approximately 10:00 a.m., Detective Jenkins
met briefly with Kingwood, and explained to Kingwood that Detective Jenkins
had court obligations that day, and would speak with him after court. Id. at
23-24. At that time, Kingwood was permitted to use the restroom, and
provided with food to eat. Id. at 24. Detective Jenkins returned from court
at approximately 4:00 p.m. or 5:00 p.m., and reintroduced himself to
Kingwood. Id. at 25. At that time, Detective Jenkins provided verbal
Miranda3 warnings to Kingwood. Id. Kingwood did not appear to be sick,
ill or injured, and acted coherently. Id. at 26. Kingwood indicated to
Detective Jenkins that he understood his rights, and did not request an
attorney or to remain silent. Id. at 26, 27. Thereafter, they began to talk
about the shooting of Lee. Id. at 27.
Kingwood initially denied any knowledge of the case, or the gun that
had been used in the shooting of Lee. Id. at 28. Detective Jenkins then
briefly ended the interview to review his case notes. Id. When Detective
Jenkins returned at approximately 6:30 p.m., he confronted Kingwood with
case information, and Kingwood then began “to give a story as to the facts
of the case.” Id. Specifically, Kingwood identified “Chaney Hasan” as the
individual who had given him the gun. Id. at 29. Kingwood requested a
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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cigarette, but Detective Jenkins denied his request because Detective
Jenkins is a non-smoker, and the interview room is small. Id. at 30.
Kingwood also requested to use the restroom, which request was granted.
Id. Detective Jenkins left the interview room and attempted to research
“Chaney Hasan,” and determined that no one by that name lived in the area,
or had come up in the investigation. Id. At approximately 10:00 p.m.,
Detective Jenkins returned to the interview room and told Kingwood that he
had been unable to substantiate the information that Kingwood had
provided. Id. at 30-31. At that time, Kingwood requested something to
drink, which request was granted. Id. at 30. Kingwood was left in the
interview room for the remainder of the night. Id. During the night,
Kingwood was observed sleeping in the interview room. Id. at 32.
At approximately 8:15 a.m. on the morning of November 16, 2012,
Detective Jenkins returned to the interview room with food for Kingwood to
eat. Id. Kingwood was also permitted to use the restroom. Id. at 33.
Detective Jenkins asked Kingwood if, after resting overnight, he had any
truthful information to provide, as the information he had provided thus far
had not been substantiated. Id. at 32-33. Kingwood declined to provide
further information, and Detective Jenkins thereafter left for court. Id. at
33. Detective Jenkins returned from court at approximately 11:45 a.m., and
confronted Kingwood by telling him that “the story about Chaney Hasan was
totally false.” Id. at 33-34. Kingwood then began to provide further
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information to Detective Jenkins about the murder, including the exact
location of the shooting. Id. at 34. Kingwood explained that he was picked
up by “Heem” and another male in North Philadelphia, and that they drove
out to West Philadelphia, where the shooting had occurred. Id. at 35.
Kingwood then began to talk about the incident. Id. Detective Jenkins
thereafter left the interview room to verify the information that Kingwood
had provided, and to determine who “Heem” was. Id. at 36. At
approximately 2:45 p.m., Kingwood was given something to eat and drink.
Id. at 38. At 4:45 p.m., Kingwood indicated to Detective Jenkins that he
was ready to give a full account of Lee’s murder, and thereafter admitted to
his involvement, and provided “names, dates, locations and[] factual
information on what occurred.” Id. at 38-39. Detective Jenkins asked
Kingwood if he would provide a formal written interview, and indicated that
Kingwood had time to think about it. Id. at 39.
At approximately 7:00 p.m., Kingwood consented to a formal interview
by police, which would be transcribed and provided to the district attorney.
Id. at 39-40. King was provided with written Miranda warnings, which he
waived by written acknowledgment. Id. at 40-42. Thereafter, Kingwood
provided a formal accounting of the incident, and his involvement therein.
Id. at 45-52. According to Detective Jenkins, no one at the police station
had threatened or forced Kingwood to give a statement to police. Id. at 55.
Kingwood had prior arrests, and was precluded from lawfully carrying a
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firearm. Id. at 20. Kingwood did not present any evidence to the
suppression court regarding his age, education, or intelligence.
Here, there is no question that Kingwood was detained for more than
40 hours. However, the duration of the detention is not controlling. See
Perez, supra. Rather, the question is whether, under the totality of the
circumstances, the confession was voluntary.
When a court is called upon to determine whether a confession is voluntary and, hence, admissible at trial, it examines the totality of the circumstances surrounding the confession to ascertain whether it is the product of an essentially free and unconstrained choice by its maker. In making this inquiry, a court is not concerned with the issue of whether the substance of the confession is true. Rather, a court is constrained to examine only whether an individual’s confession was the product of coercion, duress, or the use of other measures by interrogators deliberately calculated to overcome his or her free will.
Commonwealth v. Smith, 85 A.3d 530, 537-38 (Pa. Super. 2014).
As our Supreme Court has explained,
[t]he mere fact that there is some passage of time between when an accused is arrested and when he or she gives an inculpatory statement does not constitute grounds for suppression of the statement. Numerous factors should be considered under a totality of the circumstances test to determine whether a statement was freely and voluntarily made: the means and duration of the interrogation, including whether questioning was repeated, prolonged, or accompanied by physical abuse or threats thereof; the length of the accused’s detention prior to the confession; whether the accused was advised of his or her constitutional rights; the attitude exhibited by the police during the interrogation; the accused’s physical and psychological state, including whether he or she was injured, ill, drugged, or intoxicated; the conditions attendant to the detention, including whether the accused was deprived of food, drink, sleep, or medical attention; the age, education, and
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intelligence of the accused; the experience of the accused with law enforcement and the criminal justice system; and any other factors which might serve to drain one’s powers of resistance to suggestion and coercion.
Commonwealth v. Martin, 101 A.3d 706, 724-25 (Pa. 2014) (citing
Perez, 845 A.2d at 785-87 (internal citations omitted)). Also relevant to
the totality of the circumstances inquiry is whether the defendant provided
deceptive and misleading statements to police during questioning. See
Commonwealth v. Johnson, 727 A.2d 1089, 1099 (Pa. 1999) (stating
that, a defendant who has the presence of mind to fabricate a story when
being questioned by police, “seriously undermines” a subsequent claim that
his statements were involuntary.).
“The Commonwealth has the burden of proving by a preponderance of
the evidence that the defendant confessed voluntarily.” Commonwealth v.
Harrell, 65 A.3d 420, 434 (Pa. Super. 2013). “The determination of
whether a confession is voluntary is a conclusion of law and, as such, is
subject to plenary review.” Commonwealth v. Roberts, 969 A.2d 594,
599 (Pa. Super. 2009). However, the underlying factual and credibility
determinations pertaining to the circumstances are owed deference and
must merely be supported by the record. Commonwealth v. Nester, 709
A.2d 879, 881 (Pa. 1998).
Based on our review, we discern nothing from the suppression court
record that would establish, under the totality of the circumstances, that
Kingwood’s statements were in any way coerced or otherwise improperly
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obtained. Taking note of the factors set forth in Perez and other cases, we
conclude that Kingwood’s detention prior to his confession, although
prolonged, was not unduly long under the particular circumstances of this
case. Although Kingwood had been detained for more than 15 hours before
he was initially interviewed, the delay was due to (1) the fact that Kingwood
was brought in for questioning shortly after midnight, when the lead
detective on the case, Detective Jenkins, was at home; and (2) Detective
Jenkins’s preexisting court obligations, which prevented him from initiating
the interview with Kingwood until 4:00 p.m. or 5:00 p.m. on November 15,
2012. Although Kingwood contends that another detective should have
interviewed him, the Commonwealth presented evidence that Detective
Jenkins had been the lead detective on the case for more than one year at
the time of Kingwood’s detention. See Perez, 845 A.2d at 788-89
(rejecting appellant’s argument that another detective could have
interviewed him, and noting that “[t]he detective explained at the
suppression hearing that[,] because he was the detective assigned to the
case, he alone was responsible for interviewing … appellant ….”)
Questioning was also delayed for three hours on November 16, 2012, due to
Detective Jenkins’s additional preexisting court obligations. Nothing in the
record indicates that these delays were aimed at overcoming Kingwood’s
will, or that he was subjected to coercive tactics. See id. at 789. Rather,
questioning was initiated by Detective Jenkins “as soon as feasible.” See id.
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We further conclude that the questioning was not unduly repetitious,
as Kingwood initially provided false information to Detective Jenkins, leading
to further delays and further questioning when Detective Jenkins was unable
to substantiate the false information. Notably, Kingwood’s election to
provide false information to detective Jenkins “seriously undermines” his
argument that his confession was not voluntary. See Johnson, 727 A.2d at
1099.
Additionally, the record reflects that Detective Jenkins’s questioning
was not accompanied by physical abuse or threats thereof, nor is there any
evidence to suggest that Kingwood was detained for the purpose of forcing a
confession. Indeed, Kingwood was repeatedly advised of his constitutional
rights. The attitude exhibited by Detective Jenkins during the interrogation
was not offensive to constitutional norms. Kingwood was not injured, ill,
drugged, or intoxicated. Kingwood was not deprived of food, drink, sleep, or
medical attention.4 Kingwood did not present any suppression hearing
4 Although Kingwood was kept in an interview room without a bed, he cites no authority establishing that this circumstance constituted a legal impropriety, let alone a constitutional violation. See Commonwealth v. Martin, 101 A.3d at 727. Additionally, although Kingwood claims that he was deprived of cigarettes, the record indicates that he made only one request for cigarettes, while he was being interviewed by Detective Jenkins, which request was denied because Detective Jenkins is a non-smoker, and the interview room was small. See N.T., 6/5/14, at 30. Based on the record before us, we cannot conclude that the denial of Kingwood’s solitary request for a cigarette, while being interviewed by a non-smoker in a confined space, was a tactic designed to coerce a confession from Kingwood. See Smith, 85 A.3d at 538.
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evidence concerning his age, education, and intelligence.5 However,
Kingwood had prior arrests, and was precluded from carrying a firearm.6
In Bryant, the appellant argued that his inculpatory statement was
involuntary, and thus should not have been admitted into evidence because,
prior to giving the statement, he had been in custody for approximately 34
hours, kept in isolation, with little to eat or drink and no place to sleep, and
subjected to repeated interrogation to convince him that he would not leave
the police station until he confessed. Commonwealth v. Bryant, 67 A.3d
716, 724 (Pa. 2013). In rejecting appellant’s argument, the Bryant Court
noted that
[a]lthough [a]ppellant was held for a lengthy period of time prior to giving his inculpatory statement, part of the reason for this was the enormous amount of evidence potentially relevant to the murders that the detectives were continuing to analyze. While [a]ppellant was in custody, he was given food and drink, he was allowed to use a bathroom, he was given the opportunity to sleep and did in fact sleep. No psychological pressure was placed on [a]ppellant during his time in custody. Prior to giving each of his statements, [a]ppellant had been read his Miranda rights and had signed off on them.
Bryant, 67 A.3d at 725.
5 Nevertheless, from the record, we discern that Kingwood was 23 years old at the time of his detention. 6 Additionally, Kingwood failed to present any evidence to the suppression court regarding his claims that he was not permitted to speak to family members, or that Detective Jenkins had called him a “liar.” Accordingly, we decline to consider these claims, as they are unsupported by the record before us.
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As in Bryant, Kingwood was given food and drink, allowed to use the
bathroom, was given the opportunity to sleep and did, in fact, sleep. No
psychological pressure was placed on Kingwood during his time in custody.
Prior to giving each of his statements, he was provided with Miranda
warnings, and waived them. Although Kingwood was held for a lengthy
period of time prior to giving his inculpatory statements, the delay was, in
part, caused by preexisting court obligations of Detective Jenkins, the lead
detective on the case, as well as Kingwood’s decision to provide false
information to Detective Jenkins, resulting in wasted time spent researching
the false information. Moreover, the duration of the interrogation was only
one of many factors for the trial court to consider. The trial court correctly
determined that the length of time was justified in light of the ongoing
criminal investigation, rather than a strategy to force a confession from
Kingwood. See Trial Court Opinion, 12/15/15, at 9-10. Mere passage of
time was not enough to render Kingwood’s statement involuntary in light of
an examination of the other relevant factors at play. See Bryant, 67 A.3d
at 725.
Thus, based on the foregoing evidence and our standard of review, we
discern no abuse of discretion or error of law by the trial court in finding that
Kingwood’s statement to police was knowing, voluntary, and intelligent.
Accordingly, we affirm the trial court’s suppression Order, as well as
Kingwood’s judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/19/2017
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