Com. v. Rawls, J.

Opinion

J-S67003-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

JORDAN ADONIS RAWLS :

:

Appellant : No. 720 MDA 2019

Appeal from the Judgment of Sentence Entered April 5, 2019 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000089-2017

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY OLSON, J.: FILED JANUARY 10, 2020 Appellant, Jordan Adonis Rawls, appeals from the judgment of sentence entered on April 5, 2019, following his jury and bench trial convictions. We affirm.

The facts and procedural history of this case are as follows. On October 31, 2016, two victims, Kristine Kibler and Shane Wright, were shot and killed in their residence on Poplar Street in Williamsport, Pennsylvania. On November 10, 2016, law enforcement authorities filed a criminal complaint against Appellant, charging him with two counts of criminal homicide and other, related crimes arising from the aforementioned incident. The next day, Appellant voluntarily reported to the Williamsport Police Department after

learning of media reports linking him to the Poplar Street homicides. N.T.

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* Former Justice specially assigned to the Superior Court.

J-S67003-19

Pre-Trial Hearing, 4/26/18, at 14. At the time Appellant reported to the Williamsport Police Department, he was unaware that he was criminally charged. Id. The Williamsport police arrested Appellant upon arrival. Id. at 13-14. The police then took Appellant to an interview room, read him his Miranda1 rights, and asked that he sign a waiver form, which he did. Id. at 15. After five and one-half hours of questioning, Appellant gave a statement to police admitting his involvement with the incident at Poplar Street. Id. at 36.

Thereafter, on April 2, 2018, Appellant filed an omnibus pre-trial motion, which included a motion to suppress his November 11, 2016 statement to police. Appellant’s Omnibus Pre-Trial Motion, 4/2/18, at 1-31. In his motion, Appellant asserted that his statement was obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights. Id. The trial court, however, denied Appellant’s motion to suppress on August 13, 2018. Trial Court Order and Opinion, 8/13/18, at 1-13.

The Commonwealth subsequently filed a motion for discovery requesting Appellant to disclose any experts he intended to use at trial. Commonwealth’s Motion for Discovery, 11/21/18, at 1-3. The trial court granted the Commonwealth’s motion on December 6, 2018. Trial Court Order, 12/6/18, at 1. On February 7, 2019, the Commonwealth filed a motion to preclude Appellant’s expert, Dr. Richard Ofshe, from testifying.

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1 Miranda v. Arizona, 384 U.S. 436 (1966).

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Commonwealth Motion, 2/7/19, at 1. The Commonwealth alleged that Dr. Ofshe would proffer opinions on the “phenomenon of false confessions” and “police interrogation techniques” which “[are] not admissible in Pennsylvania” as they “constitute[] an invasion of the jury’s role as the exclusive arbiter of credibility.” Id. On February 27, 2019, Appellant filed a motion in limine also seeking, inter alia, to preclude the Commonwealth’s expert, Sergeant Elwood Spencer, from testifying at trial. Appellant’s Motion in Limine, 2/27/19, at 3-4. Appellant contended that Sergeant Spencer’s testimony regarding firearms and toolmark examination did not “possess the general acceptance to warrant admission” or the “reliability required under the structure of [Pa.R.E.] 403.” Id. On March 29, 2019, the trial court granted the Commonwealth’s motion, but denied Appellant’s motion in limine. Trial Court Order, 3/29/19, at 1.

Appellant’s trial commenced on April 1, 2019. On April 5, 2019, the jury convicted Appellant of first-degree murder,2 second-degree murder,3 robbery,4 criminal conspiracy to commit robbery,5 criminal attempt to commit

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2 18 Pa.C.S.A. § 2502(a). 3 18 Pa.C.S.A. § 2502(b). 4 18 Pa.C.S.A. § 3701(a)(1)(iii). 5 18 Pa.C.S.A. §§ 903 and 3701(a)(1)(iii).

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J-S67003-19

robbery,6 and possession of an instrument of a crime.7 Appellant then waived his right to a jury trial for the remaining charges. Following a brief, ensuing bench trial, the court convicted Appellant of persons not to possess firearms8 and firearms not to be carried without a license.9 On that same day, the trial court sentenced Appellant to consecutive life sentences for his first and second-degree murder convictions. Trial Court Opinion, 7/5/19, at 1. Appellant did not file a post-sentence motion. This timely appeal followed.10 Appellant raises the following issues on appeal:

I. Whether the trial court committed reversible error by denying [Appellant’s] pre-trial motion to suppress [] where [certain challenged] statements were unlawfully obtained [in violation of Appellant’s Fifth, Sixth, and Fourteenth Amendment rights?]

II. Whether the trial court committed reversible error by granting the Commonwealth’s motion to preclude the expert testimony of Dr. [Richard] Ofshe[?]

III. Whether the trial court committed reversible error by denying [Appellant’s] motion in limine to preclude the

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6 18 Pa.C.S.A. §§ 901(a) and 3701(a)(1)(iii). 7 18 Pa.C.S.A. § 907(a). 8 18 Pa.C.S.A. § 6105(c)(2). 9 18 Pa.C.S.A. § 6106(a)(1).

10 Appellant filed a notice of appeal on April 29, 2019. On May 8, 2019 the trial court filed an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). After securing an extension from the trial court, Appellant timely complied. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 5, 2019.

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J-S67003-19

Commonwealth from introducing [the testimony of Sergeant Elwood Spencer] where such evidence lacked [the] general acceptance necessary to warrant admission [and, as such, its probative value was outweighed by the danger of unfair prejudice under Pennsylvania] Rule of Evidence 403?

IV. Whether the trial court committed reversible error by failing to hold a Frye11 hearing regarding the admissibility of [Sergeant Elwood Spencer’s testimony?]

V. Whether the trial court abused its discretion by failing to give a “consciousness of innocence” instruction[?]

Appellant’s Brief at 4 (superfluous capitalization omitted) (footnote added).

We have reviewed the briefs of the parties, the relevant case law, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable Nancy L. Butts. We conclude that Appellant is not entitled to relief in this case and that Judge Butts’s July 5, 2019 opinion, which also incorporates her August 8, 2018 opinion, adequately and accurately disposes of Appellant’s issues on appeal. Specifically, we agree that the trial court did not err in admitting Appellant’s November 11, 2016, statement to police because Appellant executed a valid waiver of his Miranda rights and in

turn, waived his Sixth Amendment right to counsel.12 See Trial Court Opinion,

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11 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

12 While we adopt Judge Butts’s opinions, we note the following. Herein, Appellant alleges that the trial court erred by denying his motion to suppress because the police obtained his statement in violation of his Sixth Amendment right to counsel. Appellant’s Brief at 18-25. A defendant’s Sixth Amendment right to counsel attaches at “the initiation of adversary proceedings” which includes the filing of a criminal complaint. Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa. 2009). A defendant, however, may waive his Sixth

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J-S67003-19

____________________________________________

Amendment right to counsel. Indeed, if “a defendant [] is admonished with the warnings set forth in Miranda” he “has been sufficiently apprised of the nature of [his] Sixth Amendment rights, and thus, a waiver of [his] Miranda rights may [also] constitute a waiver” of his Sixth Amendment right to counsel. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Nonetheless, a defendant must execute a voluntary, knowing, and intelligent waiver. Id. “The determination [of] whether [a defendant] has knowingly and voluntarily waived his constitutional rights depends on the facts of each particular case.” Commonwealth v. Kunkle, 79 A.3d 1173, 1182 (Pa. Super. 2013), citing Fare v. Michael C., 442 U.S. 707, 724-725 (1979). “These circumstances include the background, experience, and conduct of the accused.” Kunkle, 79 A.3d at 1182. Herein, Appellant’s chief complaint is that, because the police failed to specifically inform him that he was criminally charged with the Poplar Street homicides, his Miranda waiver was invalid, i.e., it was made unknowingly and unintelligently. We disagree. At the suppression hearing, the Commonwealth demonstrated that, at the time Appellant entered the Williamsport Police Department, he knew that law enforcement was “looking for him” because “his picture [was] in the media in an attempt to identify him in relationship to the homicide on Poplar Street.” N.T. Pre-Trial Hearing, 4/26/18, at 14. The Williamsport police then advised Appellant that there was an arrest warrant for him, took him into custody, and read him his Miranda rights. Id. at 13. Before Appellant waived his Miranda rights and before police commenced any questioning, police also specifically informed Appellant that the arrest warrant was issued in conjunction with a police investigation of a criminal homicide. Id. at 33. Accordingly, we agree with the trial court’s determination that the mere fact that the police did not inform Appellant that he was criminally charged did not render his subsequent Miranda waiver unknowing or unintelligent. See Riddick v. Edmiston, 894 F.2d 586, 591 (3d. Cir. 1990) (holding that the defendant executed a valid waiver of his Miranda rights, and in turn, his Sixth Amendment right to counsel, even though law enforcement failed to specifically advise the defendant that he had been indicted on a murder charge); See Commonwealth v. Carr, 580 A.2d 1362, 1365-1366 (Pa. Super. 1990) (explaining that a suspect “need not have knowledge of the ‘technicalities’ of the criminal offense involved” to execute a valid waiver of his Miranda rights, “rather, it is necessary only that he be aware of the ‘transaction’ involved.”). Thus, while Appellant’s Sixth Amendment right to counsel attached upon the filing of the criminal complaint, the trial court correctly found a valid waiver of that right after Appellant received Miranda warnings and executed a waiver form.

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J-S67003-19

8/8/18, at 2-7. We further agree that the trial court properly precluded Dr. Ofshe’s proffered expert testimony because it violated the province of the jury, that the trial court did not err by admitting Sergeant Spencer’s expert testimony on firearm and toolmark examination without a Frye hearing, and correctly concluded that the circumstances of this case did not warrant a consciousness of innocence instruction. See Trial Court Opinion, 7/5/19, at 1-4. Therefore, we affirm on the basis of Judge Butts’s opinions and adopt them as our own. In any future court filings that address this ruling, the filing party shall attach copies of Judge Butts’s opinions filed on August 8, 2018 and July 5, 2019.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/10/2020

Received 11/14/2019 12:56:57 Pe;raim 4'd

File' 19 12:56:00 PM Su iddle Distri t 20 M DA 20 9

IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA

CR-89-2017

JORDAN RAWLS, Defendant Omnibus Pretrial Motion

OPINION AND ORDER

Defendant, Jordan Rawls filed an Omnibus Pretrial Motion on. April 2, 2018. A hearing on the Motions took place on April 26, 2018. Several of the issues were disposed of by the Court during the hearing. A briefing schedule was set to address a number of the remaining issues raised. The Court ordered a transcript of the hearing be provided to the Commonwealth and Defendant to assist with the preparation of briefs. The final briefs were due on July 6, 2018. Faclual Background Jordan Rawls is charged with. Criminal Homicide (two open counts);1 Criminal Conspiracy (criminal homickle),2 Robbery;3 Criminal Conspiracy (robbery);4 Criminal Attempt (robbery);5 Persons not to Possess Pirearrns;6 Firearms not to be Carried without a License;7 and Possessing Instruments of a Crime,8 The charges arise from a shooting that occurred on October 31,.201.6, at 613 Poplar Street in Williamsport, PA.

1 .18Pa.C.S. § 2501(a).

tt-tEr,51

2 18 Pa.C.S. § 903(a)(1). '3 3 18 Pa.C.S. § 3701(a)(1)(ii ). 4 18 Pa.C.S. § 903(a)(1). -.V 5 18 Pa.C.S. § 901(a). D1S-1-1-1t01 6 18 Pa.C.S. § 6105(a)(1). 7 18 Pa.C.S. § 6106. 8 18 Pa.C.S. § 907(b).

Exhibit. A

Discussion

Did Defendant voluntarily waive his Miranda rights Defendant first alleges that the statements that he gave at the police station should be

suppressed as they were obtained by the police in violation of his Fifth, Sixth and Fourteenth

Aniendment rights, The Commonwealth argues that there Was "nothing sinister employed by the

t.A) gents" from the Williamsport Bureau of Police prior to the Defendant waiving his Fifth

Amendment right. This Court agrees with the Commonwealth.

In order for a waiver of Miranda rights to be valid, the waiver must have been knowing

and voluntary. Berghuts v. Thompkins, 560 U.S. 370, 383 (2010);.1forth Carolina v. Butler, 441

U.S. 369, 3:73 (1979). The Court in Miranda emphasized that its decision was "not intended to

hamper the traditional function of police oftkers investigating a crime." Miranda v.

Arizona, 384

U.S. 436, 476 (1966). Rather, the safeguards of the Miranda warnings were put into plaee to

advise an accused of his righth. Berghuis, 560 U.S. at 385; Davis v:'United States, 512 U.S. 452,

460 (1994); Moran v, Burbine, 475 aS. 412,427 (1986). Therefore, an individual who is taken

into custody must be informed of, and have the opportunity to exercise, his Miranda rights, but

may knowingly and intelligently choose to wave these tights and make any statements he

desires. Id. In order for an accused to voluntarily waive his right to remain silent, the accused must riot: have been threatened, tricked, or cajoled by police officers into the waiver. Miranda,

384 U.S. at 476. Further, officers may not mislead a suspect or induce a waiver with the promise

of a lower charge or special consideration. Commonwealth v. Gibbs, 553 A.2d 409, 411 (Pa.

70

1989). An officer also may not persuade an individual who has invoked his Miranda rights to retract his position. Commonwealth. v. .Weaver, 418 .A.2d 565, 568' (Pa. Super, 11980). In order to

invoke:. the right to rernainsilent an:accused must .makei an. unambiguous, affirmative statement.

Berghais, 5.60. 380: A suspect must also unambiguously request counsel; if he does not,

the...police have no obligation to cease questioning, Davis, '.512' U.S:..at 459.. Ploys to mislead a

suspect or lull him into a false sense. of security that do not rise to the level of compulsion or

coercion to speak are not within Miranda's concernS../MitoiS v Perkins, 496 U.S., 292,.297

(1990). After infOrming an.accused of his Miranda ights, Officers, tut perinittedio.engage in a

pre -waiver interrogation andAnyslilbseple*ConfeSSion acts as an implied waiver of Miranda

rights. Bergintis 560 U.S.. at 372.

In this' case, Defendant appeared at the Williamsport Bureau of Police headquarters after

hearing his photograph was"being circulated lathe media, :alerting the public..tat.he was wanted

for questioning in connection with a double hornicide, which occurred.on.Poplar Street,.

Defendant. was .arrested by Agent Trent Peacock of the Williamsport.Bureau of Police and read.

the. Miranda warnings verbatim. Defendant. was encouraged to talk to the agents but then .reminded againthat he did not have .tOtalk to them .ot answer any questions, And.that by Waiving.

his Mirandarights, Defendant was agreeing to anSWer. questions without an attornerOment. Defendant signed a waiver minUtes.later and was subsequently interviewed. There is nothing.to. indicate from the video or:'the conversation that.Defendant was incapable, of understanding the. rights. explained Whim. No.evidence was presented that the agents coerced Defendant, promised .Defendant a lesseror harsher §6ritence based on a waiver, or threatened or harmed Defendant. *The agents..statements priotto 'obtaining:Defendant' s waiver did 'not rise to a level of coercion that would he .conderimedby Miranda, rather they.Were nothing more than an attempt to lull

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Defendantinto..a.congenial attitude, Further,:as the agents would have been permitted to engage

impre-waiver interrogation, it can be .extrapolated that they ar also within their right .to..inake tincoercive

statements prior to obtaining a waiver. Miranda was not intended to hamper:normal

police functions, into which category the officer's statements undoubtedly.fall,.as:

common

police tattles: Defendant asserted Olathe 'understood his rights m1441.1111* occasions and expressed that he had no, issue talking.to the agents. At no point did the Defendant state he would

likatoinvoke his right t1.2.rmain silent:or .speak.to. an attorney. Defendant's argumentdiat:

respectful police conduct is inherent.to cajoling andtrickery, and thus respectful condirctmust.

cause a statement. to be involuntary is tmfounded and over-reaching.

Further, the Supreme Court of the United States has held that an accused does not have to

know all possible subjects of questioning in advance of interrogation in order to voluntarily,

knowingly, and intelligently waive his Fifth Amendment privilege. Colorado v.

Spring, 479 U,S.

564:, 577 (1987). Further, a valid waiver "does not require that an individual be informed of all

information 'useful' in making his decision or all information that `might affec[t] his decision

to confess."' Jd.at576 (quoting Moran, 475 U.S. at 422). Miranda warnings are intended to

convey the constitutional, privileges afforded to an individual and the consequences of

abandoning them. Id. at 577. Therefore, the failure of police officers to inform a defendant of the

subject matter of an interrogation does not affect the defendant's decision to waive his Fifth

Amendment privilege in a constitutionally significant Manner. Id. at 566.

Here., Defendant asserts..that because he,was not. specifically informed Of thecharges.

against him prior to his Mfranda.warnings being read, his waiver of his Miranda rights was' not.

valid. This Court finds:this. assertion to be unfounded. Defendant discoveredihat he. was wanted.

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for questioningin relation to the homicides, which had occurredon.Qctober 31., 201.6, after

beconning awarcthat his picture. was being circulated throtigh the 'media. Ma result, Defendant voluntarily reported to the police station. on November 11, 2016. Defendant informed the police

officers that.he: Was. already aware Ofthe:Aootingdeaths as he had' previously reaclabont the

.

incident on.facebOok. The court finds that Defendant was:adequately aware of the circumstances surrounding his .arrest and subsequent at the time he: waived his Miranda rights, It is not necessary that Defendant know 'all the possiblestibjects of the interrogation to validlywaive his Miranda rights or relinquish his right to remain silent:.

Rowevor,the officers, did.not.stray into a discussionof any other primes, butconsistently kept

their questions related to the events Ofthenightin question, Defendant was supplied the Miranda

warnings and thereby informed' of the constitutional privilegeSaffOrded to him:Defendant was

fully.apPrised of, and expressly waived, his. Miranda rights. Therefore, Defendant's waiver of Miranda. was-inowingty and. intelligently. made..

Did befendant waive his Sixth Antendment right to counsel Defendant also asserts that the. failure. of police to inform him of the crimes with which 'he was being charged is aNiolation of his Sixth knendinent right: to cotinsel. The Commonwealth

argues that the Deferidantwas aware both from. the media reports and statementS.rnadeby 'Agent

Trent.P.eicoek that the police were investigating a homicide and:that he was, a person of interest

in the. investigation..

The Supreme Cont of the United States has held on multiple occasions that when, an

accused voluntarily waives his Miranda rights, he also waives his Sixth Amendment right to

counel..Montejo v. Louisiana, 556 U.S. 778, 786 (2009); Patterson v. Illinois, 487 U.S. 285, 293

(1988). The court reasoned that an accused who is given ildirancla warnings has been sufficiently

apprised of the nature of his Sixth Amendment rights and the consequences of abandoning such

rights, therefore a knowing and intelligent waiver of Miranda also applies to the Sixth

Amendment right to counsel. Patterson, 487 U.S. at 296. Further, the Court has held that the

Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of

the right is voluntary, knowing, and intelligent. Montejo, 556 U.S. at 786; Patterson, 487 U.S. at 292 'n. 4; Johnson v. Zerbst, 304 U.S. 458,464 (1938), The Supreme Court of Pennsylvania has

also held that a waiver of Miranda rights is sufficient to waive an accused's Sixth Amendment

right to counsel. Commonwealth v. Woodard, 129 A.3d 480, 501 (Pa. 2015) (reasoning that the

appellant was informed of his right to counsel and chose to give a statement without counsel

present, thus nothing more. is required under the law).

Defendant asserts that his waiver of Miranda rights was not valid and therefore was.

insufficient to waive Defendant's. Sixth Amendment right tO Counsel: However, as discussed

Previously, this Court has found that.Defendant!awaiver of his Miranda rights was valid.

.Defendant argues that he. was unaware of the magnitode,.of the accusations againsthim and

therefore. cotildnot ha.Vevalidly waived his .7ight. touounsel. However, Defendant was admittedly

aware that the incident which he was wanted fOt questioning in connection to was :

theshooting

death of two people.. Defendint.arguably.understood the gravity of his arrest due to this

knowledge. Further, DefendantWasinfOrmed of the rights afforded to him and the consequences..

cfaVanclottirig such..rights hutehose to waive them regardless, 'Therefore; Defendant's waiver of

his Miranda rights was voluntary, knowiug, andintelligent-thus, itWas sufficient to waive..

Defendant' s.S ixth Amendment right. to .counseL

Were Defendant's .0aiements on.Navember 11,201,6 madevoluntartly

Thenextissueraised by the Defendant Is, that his statements made to.Ihe polkewi November L1 201.6, were.. not 'made vOluntarily.. Defendant spoke to the police. on this, first

occasion after discovering. thathe was a person' of interest. Agents Peacock and Kontz..then led

Defendant to.art interrogation room and placed him. under artest An interview video was'

prepared of the conversation between the. Defendant and the agents. Commonwealth asserts that a review ofthe video establislies.that the statements were. voltintarilyniade.

To determine voluntariness; a court mustcorisider the totality of the "circumstances

surrounding:a.given .statement....cbmmonw.ea/th v. Templin, 795 A.24959,9.61 (Pa. 2002);

.

Arizona v. Fultninante, 499 U.S. 279285 0994 Relevant factors include the defendanes'age,

.intellectual capacity,. the CifdAy, and ntinner:of questioning. See Kentucky v. Cane, 47611S: 683, 691 (19861 Circumstances regarding *the Manner Of questioning include the duration"and

'means of the questioning, the, nature.ofthe detentiOn,. the"defendant's physical and.

psychological

state,. the conditions of the interrogations, and the :conduct of the police Officers.. Payne v.

Arkansas', 356 US. 560 (1958); see Templini 795 A.2d at 966; Commonwealth v, Perez, 845 A.2d. 779..(Pg:. The duration of.an interrogation ia not.deteribitiative on:the issue. of Voluntariness; 'officers may. OW.an accused the opportunity to:detail his side of the story' before 'arraigning him.. commonwealth v. D"14 mate, 526 A.2d 300.308. (Pa. 1987). Additionally, the. threat of physical violence, orthe promise of protection from physical violence, is, a.televant factor. Fli/mlizatge, 499 U.S.. at 487-88. 'Pennsylvania, a confessionis involuntary when.ati *interrogation is:so. manipulative. or coercive that, it deprives the.defendatit of his ability to:make.a free and unoonstrained:deeiaion to confess. COrrirOtiweiaith..V. Nester,709 A.2d .819,...882 (Pa, 1998),

DefendantargueS that the. Statements. made:to the.pblice.officets following. Defendant's waiver of Miranda rights .were..involuntary and Must be suppressed. The Court disagrees. Defendant is twerity-four years Old and has had priorexperience With the police.Deferidant does not allege that his intellectual capacity is diminished. On November 11.3.2016, Defendant. arrived at the .police :station .at epPrcacimately .1 p.m', and was subsequently. placed.underarrest. :Defendant was taken to artinterragation room .at.approximately 2:03 p.m. and the police officers commenced .questioning; Defendant was then questioned .on and off until approximately 7:40 p,rn. During this time span, Defendant was given over two hours of breaks from interrogation, which included cigarette breaks.and a dinner break. The length of Defendant's interrOgation cannot be .seenas.e4cessivein.length, Additionally, the police officers did not

threateri,..deceive, olr promise anything to Defendant at any pintin time, hut.rather. encouraged him to be honest and emphasized the seriousness of the situation, Defendant may have been held

incommunicado or without the opportunity to speak to others for the duration of the interrogation only in. the sense that Defendant's relatives or any others did not request to see him and thns were not denied the opportunity to do so. The actual facts of this case are in direct contrast to

eases upon which the. Defetclantrelies. Moreover, each sdf the Cases which Defendant relies upon :

to assert that the statements were invOluntarily. Made involved defendantiwhO WeredepriVedof food,,:sleeP, and breaks or threatened with physical .harm. The .shOrt time span inwhiCh Defendant was actually interrogated, the accommodations made for his cotafort considering the

9

circumstances, arid the demearior.Ofthe police officers all suggest that Defendant's statements, were completely voluntary.

. Defendant also argues that the police. officers were in eorriplete.control..of Defendant's liberties; however, the record,Showsthat the Offieers.granted Defendant's requests to pause or smoke. Counsel for Defendant insinuates that the off-screen.breaks in which.D.efendant requested to smoke rceigarette mayhave been aceonipanied.bY improper policebehavior and that the officers! comments "smack of damage control" however, Defendant himself has made no claims of threats; violence, or coercion from the officers at any time. Additionally, any delay in *taking Defendant to a Magistrate forwraignment is not determinative of the voluntariness of his confession. Officers allowed Defendant the time to detail his version of the events on the night in question; the interview was in fact prolonged by Defendant's refusal to admit to known facts even when.faced with evidence. in support .of them.

In reviewing the totality of the circumstances, the Court finds that the interrogation was not so manipulative or coercive as to deprive Defendant of his ability to make free and unconstrained statements. Therefore, Defendants statements on November 11, 2016 were made voluntarily.

Were Defendant's statements on November 16, 2016 made voluntarily Defendant was subsequently interviewed on November 16, 2016. Defense Counsel alleges that the questioning was neither preceded by adequate Miranda warnings nor proof of an appropriate waiver and should be suppressed.

Under Pennsylvania law, not every renewal of the interrogatiOn:prOcesS requires the repetition of Miranda warnings. Commonwealth v. Proctor, 585 A.2d 454) 459..(Pa.1.9.1), The *courts must 1(101o:the eircumstances of each. C.aseto determine whether a Warning has become. stale, The faCtors.to be-evaltiatedliare;.

[T]he length of time between the warnings and the challengedinterrogation, Whether the interrogation was conducted at the 'Same place Where the warnings. were. given, whether the officer Who. gave the warnings also conducted the questioning, and whether statements obtained are materially different from..other statements: that:may have :been made .atthe. time of the. warnings.

Id. Additionally, a Fifth', Amendment waiver may still be valid, even if .not given in the exact. tbrin described in Miranda; if the defendant is provided with a "fully effective: equivalent" to the verbatim.warning DoblovOrth .D4414.492 U.S.. 195.; 202.(1989).

In this eaSe,, theft was.ative...day lapsebetween the'first warnings and the second, interrogationythe second...intetrogatiOn was. conducted in the.same room as his firstinterview;. the interrogation, was conducted by, the same two officers as the November 11 .questioning; and Defendant did notprovide any 'new information or materially different statements, his statements Were conSisterit.With.those given at the prior interrogation..ljefehdant was giveti:en abbreviated version Of the Miranda warning, including the right to.remain silent, the. right. to .an attorney, and the right te stop ..answering..questions atony.tirne..Defendant affirined his understanding of those rights. Therefore, Defendant's original...Mfranda waiver coupled. with the truncated 'reminder was sufficient to totidet the.stibsequent staternerits:as voluntary. Therefore, Defendant's statements. on November t6, 2016 were made voluntarily.

JO'

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Is the Defendant entitled. tO ingieachment.evidence and theaomplete criminal history of the

Commonwealth's witnesses Under the Brady rule, the prosecution has, a duty to disclose all exculpatory evidence to a

defendant prior to trial, See Brady v. Maryland, 373 U.S. 83 (1967); Commonwealth v. Strong,

761 A.2d 1167, 1171 (2000). Impeachment evidence also falls within the Brady rule. United

States v. Bagley, 473 U.S. 667. Impeachment evidence includes "any potential understanding

between the prosecution and a witness, ,because such information is relevant to the witness's

credibility." Commonwealth v. Weiss, 81 A.3d 767, 783 (2013). Further, a witness's criminal

convictions, arrests, and parole or probation status are relevant impeachment evidence, Davis'.'.

Alaska, 415 U.S. 308,'316 (1974). A witness's criminal record has long been held as a necessary

and valuable tool for defense, Commonwea/th v. Copeland, 723 A.2d 1049, 1051-52 (Pa. Super.

1998); see Davis, 415 U.S. 308; Commonwealth v. Baxter, 640 A.2d 1271 (Pa.

1994). A

witness's critnen filsi convictions, actual agreements with prosecution, and hopes for leniency

are all relevant to determine his pr, her potential bias. Copeland, 723 A.2d at 1052..

The Third Circuit has held that a criminal record, which arguably could have been

discovered by defense counsel, is suppressed if not disclosed by the prosecution.

Dennis v. Seey,

Pennsylvania Del* of Corp., 834 F.ld 263, 292 (3d Cir. 2016) (citing Wilson v. Beard, 589 F.3d

651, 663-64:'(3d Cir. 2009)). Further, the Ninth Circuit has held that the fact that a defendant

could and should have discovered Brady evidence, did not absolve the prosecution of their chit), to disclose the evidence. Gantt v. R04, 389 F.3d 908, 913. (9th Cir. 2003).

Favorable evidence to

the defendant is material evidence under Brady. Bagley, 473 U,S. at 678.

It. is well, settledtbat that a criminal defendant is entitled to know.any information That May affect the reliability of the witnesses against him. Commonwealth v. Moose, 602 A:2d 1265:, 1272..(pa., 1992) (nondisclosure of.eVidence.affecting.reliebility falls within Brady'S general rtile). Copeland, 723. A,24 at 1051., :It is not within the..Commo.nwealth.'s power todetennine what areas of a witness's criminal history may or maynot be relevant for Brady purposes,. Contrary'to the Commonwealth's.assertion, or/menfalsi convictionsarenot the.only information. to which. the Defendantis entitled: Rather, any, evidence.whieh is favorable to the defense must

.be disclosed since there are a variety of reasons why'a Witness's Critninaltecord. is relevant.to his other potential bias, including an agreement with prosecutors on open charges; hopes -for

leniency in sentencing, and prior dealings with law' enforcement as an informant. See Commonwealth v, Dawson, 702 4,2d 864 (Pa. Super. 1997) (aetualagre.ements, as.well as. a witnesses hopes for a deal are proper subjects ofcrosS-eXarnination).; sec also Commonwealth .Borders, 560 A.,2d 758 (Pa. 1989). (even pendingJuvenile.charges may he. hrought out on cross- 'examination to show-bias). 'therefore, 'this Court' finds the Third Circuit's reasoning persuasive,. choosing. to recognize. that such crimiriathistorieS, even these diSeOverableby.Defendarit, may be suppressed by the Court if the Commonwealth fails to disclose the .infoxitation,

13

ORDER

AND NOVV, this ID day of August, 2018 after hearing and argument on

Defendant's Omnibus Pretrial Motion, the Defendant's Motion to Suppress Statements is hereby

DENIED.

Defendant's Omnibus Pretrial Motion to Compel Disclosure of Existence dud Substance of Promises of Immunity,, Leniency, or Preferential Treatment and the Complete

Criminal History of Commonwealth Witnesses is hereby GRANTED. It is ORDERED AND.

DIRECTED that the Criminal histories of all Commonwealth witnesses to be called to testify at

trial be provided to Defense Counsel no later than thirty (30) days prior to jury selection.

ICc: A E.J. Rymsza, Esq.

Received 11/14/2019 12:56:57aManriffic,81.16,MiMeapi§ct

Filpd 11/14/2019 12:56:00 PM.SupertcrCourt.:71Acigh!)17i§ ict A 2 19

IN TI-JE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH OF. PENNSYLVANIA, .S1

v. CR 89-2017

Vi arrq

JORDAN RAWLS, CRIMINALJ:0110 N7-; 0 Z.11

Appellant APPEAL CI)

rri

OPINION IN SUPPORT OF ORDER IN COMPLIANCE WITH RULE 1925(a)

OF THE RULES OF APPELLATE PROCEDURE

Appellant appeals his judgment and sentence, which was rendered on April 5, 2019. This Court requested a Concise Statement of Matters Complained of on Appeal on May 8, 2019. Appellant filed for an extension of time to file, which this Court granted. Appellant filed his Statement of Matters Complained of on Appeal on June 28, 2019. In his Statement of Matters Complained of on Appeal Appellant claims that this Court erred: (1) in not suppressing Appellant's statements to police;1 (2) in granting Commonwealth's Motion to Preclude the testimony of Dr. Richard Ofshe; (3) in denying Appellant's. Motion in. Limirie to preclude the testimony of Elwood Spencer an expert in firearms and toolmark examination; (4) in not conducting a.Friie hearing for the admissibility of Elwood Spencer's expert testimony; (5) failing to give a consciousness of innocence jury instruction; and (6) by failing to give a jury instruction on various omissions in the police investigation. improper Preclusion of Dr. Richard Ofshe Appellant claims this Court erred in precluding the testimony of Dr. Richard Ofshe "whose testimony would have educated the jury on influences during police interrogation, coercive techniques utilized by the police to elicit a confession and overbear an individual's will,

I This issue was addressed in this Court's Opinion and Order dated August 13, 2018, on which this Court will rely for the purposes of this Opinion.

Exhibit B

and generally how interrogations work,' Appellants Statement of Matters Complained of on APpeal...6/28/1.9,.at 1. This niiitors Appellant's representation to the Court.regarding the matter at the Match 5,.201.9 hearing Appellant claiins. that. commonwealth v Alieia.**red expert. testimony on false cOrilessiens.and.tiot.ConpoliCetechniqueS. and theories of.coerced confessions, N.T. 3/5/19, rit.6-8. This Court disagrees with Appellant and finds that the proffered testimony would have been no different than that.Which was prohibited in Alicia.

The Pennsylvania Supreme Court in Alicia determinedthat, even after barring an expert

from.giying an fial opinion on the issue of whether aconfession was false or.not; "[g]eneral expert testimony that..certaininterrogatiOn techniques have the potential to induce .false

confessions improperly invites the jury,to determinp that those partiatilar interrogatiOn techniques vvere.usedtoelleittheconfession in question, arid hence to concludethrit:it should not

be considered reliable," ComplaivealMy. Alicia; 92 A.34 753, 764 (Pa. 2014. The Pennsylvania Stipierne.Courtfotind.thetestimony was therefore.not permissible becauseit would

be "an impermissible itiVasion.of the jury's role .a.S.the exclusive .arbiter of ciedibili67." Id. As in Alicia, whether an individue.S.confession is coereed "is best left to die. jury's common sense and. life experience, after proper development.of relevantissues related to... the..particular circumstances surrounding the elicitation of his confession, using the traditional and time, honoredtechniqueS of cross-examination and argument." Id Failure to Preclude the Testimony of Eiwood.Spencer :Appellant contends that this Court erred in two ways, by not precluding the testimony of Elwood Spencer and. by: not holding a Frye hearing on the issue. 7Frye is potimplicated every time science comes into the CourtrOorn; rather, it applies only to proffered expert testimony involving nov4seienee."..ctwnopwciath. v, Dengler, 890 A.24 372, 382 (Pa:. 2005). At trial, Elwood Spencer testified as an..expertin *field of firearms andtnolmark examination,

Firearms and toolmark examination is afield which Pennsylvania Courts have time and time again found to not be novel, See commonwealth -v, Whitacre, 878 A.2d 96, 101 (Pa. Super, 2005) ("As the technique [used in firearms and toolmark examination] has been in use since the 1930's, it is neither new nor original, but rather is..of the sort. thatis offered...all.the time."); see also Commonwealth v, Ovatios, 144. A.3d 957, 963 (Pa. Super, 2016) (expert testimonyof firearms and toolmark examiner provided at trial); COmmonweallh. v. Frein, 206 A.3.d. 1049; 1061 (Pa, 2019) (expert toolmark evidence used asevidence atrial). Since the methods used by El.woo.d. Spencer. are not novel and are commonly accepted by Pennsylvania Courts thiS.Court did not precludehislestimony or hold.a Frye heatingtodetertnine if the methods of examination were uovel, Court's Failure to Give Pertinent itnyjnstruciion.$ Appellant argues this Court shouldhave givert.thcjiny..a coicioüsnessofinnOcence instruction because he self-reported to the police. station for questioning. One: Of the few

Pennsylvania.cases dealing with a cOnstiousneSsofinnOcencejury instruction is: Commonwealth . .

V. Thomas. The Pennsylvania Supreme: Court recognized that. other jurisdictions which have addressed consciousness of innocence jury instruction "uniformly have.concluded that a dele.ndarit is..notentitled tosuch an instructim"..Commonkg/0 v. Thomas, 54 A.34 332, 342. (Pa, 201.2), Although it did notall together -bar a trial. courtft-om giving a consciousness of innocence jury inStruction,..the Pennsylvania Supreme Cowl stated '"tt]hernatter is:properly one of argument to the jury;" 14 This Court found, as in Thomas, Appellantharl ample opportunity to Address theissue on cross examination and iii argument while closing. Appellant took foil: advantage of his opportunity:to data. N.T..4/4/19, at-23, 29, 31434.. Appellant would have. this Court instruct a jury on consciousness of innoeence every titno.a defendant oat-nein for,

3.

questioning of. their. own accord, which as a singular. action is not enough to trigger the necessity for such an instruction.

Lastly Appellant argues this Court erred when itfailed to instruct.thelury based.on "various omissions in the polle.einvestigatien...Where thelack of scientific testing and/or otherwise following police procedures during the investigation Of the .rntirderS was a .relevant factor in evaluating the COmmonwealth's evidence." Appellant's Staternentof Matters Complained of On -Appeal 6/28/19at 2. Appellant presented this Court with the Criminal Model

Jury instructions for ..Massachusetts.3 .140,, Omissions in :Police InVestigations, asking it be read .

to the ..jury, See N.T. 4/4/19, at15-16..Aa PennsylVaitiaCOurts have notrecognized such an instruction,.this Court did.not allow the instruction toread to the jiary. The Court noted that the juryis: already instructed to find. based on.the evidence "or the. Wk. thereof'..and permitted counsel for both sidesito.argue the issueinclosing. ja. at 16.17, 78-19, Defense counsel did argue the isSue adamantly in his closing. Id, at 35,40. To have allowed the instruction. would have taken focus away 'from the jury's primary task to determine Whether the Commonwealth had proved the entirety.of its case beyond a-reasonable. doubt.. The jury -would have instead.been :

directed to focus on what efforts created the. evidence. as Opposed to the evidericeittelf, Which .

would be in err.

DATE: July 5, 2019 By the Court,

Nancy L Butts,. .resident JUdge .

xc: DA (MW)

Edward J. Rymsza, Esq.

NLB/kp