Com. v. Smith, D.

2022 Pa. Super. 104

• Court: Superior Court of Pennsylvania
• Decided: June 6, 2022
• Docket: 983 EDA 2019
• Status: Published

Opinion

J-E01005-22

2022 PA Super 104

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DESMOND SMITH : : Appellant : No. 983 EDA 2019

Appeal from the Judgment of Sentence Entered March 1, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010615-2016

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE, J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

CONCURRING/DISSENTING OPINION BY McCAFFERY, J.:

FILED JUNE 6, 2022

I agree with the Majority’s disposition of Appellant’s challenges to the

preclusion of both his homicide-trial alibi evidence and E.M.’s Facebook social

media post. However, I respectfully disagree with the Majority’s conclusion

that we cannot review the suppression ruling on the basis of the record before

us. Instead, I would determine that we can review the ruling, no relief is due,

and thus we should reach Appellant’s last issue, concerning sentencing. I

concur in part and dissent in part.

I briefly reiterate the facts, in chronological order. In the summer of

2015, the victim, E.M., and Naadir Abdul-Ali (Co-Defendant) were in a

romantic relationship. Trial Ct. Op., 11/6/19, at 3. On August 22, 2015,

Appellant and Co-Defendant committed the sexual assault against E.M., at J-E01005-22

Appellant’s home in Philadelphia. Id. at 3-4. Approximately five weeks later,

in Montgomery County, on September 27th, masked men entered E.M.’s

house and killed her father, Kevin Brown. Id. at 2. In talking with police,

E.M. identified Appellant as one of the masked intruders, and told them about

the August 22nd rape. Id.

As the Majority points out, a suppression court shall enter, on the record

at the conclusion of a suppression hearing, “a statement of findings of fact

and conclusions of law as to whether the evidence was obtained in violation

of the defendant’s rights, . . . these rules or any statute[.]” Maj. Op. at 17,

quoting Pa.R.Crim.P. 581(I). Here, the suppression court did not preside at

trial,1 and the subsequently-appointed trial court did not address Appellant’s

suppression issue its Pa.R.A.P. 1925(a) opinion. Nevertheless, I would

conclude we can assess the suppression court’s on-the-record statement in

the context of the evidence presented, the parties’ arguments, and the court’s

other statements at the hearing.

I summarize the interrogation. Over the course of Appellant’s

interrogation on October 2, 2015, Detective Gregory Henry took three written

statements, each following a period of formal questioning. The first interview

began at 9:27 a.m., when Detective Henry advised Appellant that he was

under arrest, and was being questioned, for the homicide of Brown on

1 The suppression judge, the Honorable Roger Gordon, retired from the bench.

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September 27th. N.T. Trial, 12/19/18, at 136.2 Appellant stated he was at

home with friends and his family almost that entire day. Id. at 139-40.

Appellant was then asked whether he knew Co-Defendant — who was also a

suspect — and he responded he had known him “since [they] were little,” and

they “were close.” See id. at 141-42. Detective Henry asked whether

Appellant knew Co-Defendant’s girlfriend. Id. at 141. Appellant admitted he

met her “a few times” but could not remember her name, as E.M. and Co-

Defendant had recently broken up. Id. at 143-44. E.M. had previously been

in Appellant’s bedroom, along with Co-Defendant, but Appellant denied having

sexual contact with her. Id.

During a four-hour break, Detective Henry talked with Appellant “off the

record,” and asked Appellant how E.M. would have known him. N.T.,

12/19/18, at 147, 150-51. Formal questioning resumed at 2:56 p.m., where

the detective asked Appellant if he “want[ed] to clear up the incident

involving” Co-Defendant and E.M. Id. at 152. Appellant replied, “I want to

tell the truth about that,” and stated the following. Id. Co-Defendant and

E.M. came to his house; Co-Defendant “was all pissed off[ and] wanted her to

do all this wild stuff.” Id. at 153. Co-Defendant had sex with E.M. in

Appellant’s room; E.M. also performed oral sex on Appellant. Id. at 153.

2 See Maj. Op. at 12 n.3 (noting Appellant’s full statement was admitted into evidence at the suppression hearing, but is not a part of certified record before this Court, and thus referring to the portion of Detective Henry’s trial testimony, where statement was read into the record).

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Appellant heard Co-Defendant tell E.M. not to tell anyone about this. Id. at

154. Appellant also stated that “[i]t looked like [Co-Defendant] had a jawn,”

meaning a weapon, in his bookbag. Id. at 153. This statement ended at 3:35

p.m. Id. at 155.

Formal questioning resumed at 5:39 p.m., and Detective Henry again

asked Appellant about the sexual incident. N.T., 12/19/18, at 156. At this

time, Appellant stated Co-Defendant’s bookbag was empty and he did not

know if there was a weapon. Id. at 156-57. When asked if he saw Co-

Defendant point a gun at E.M.’s head, Appellant responded, “I saw him move

closer to her with the bag. That meant something. . . . The bag didn’t affect

me as much as it affected her.” Id. at 157. While E.M. performed oral sex

on Co-Defendant, Co-Defendant told Appellant to insert his penis into her

anus. Id. at 158. Appellant instead “[inserted] it in her vagina.” Id. This

concluded the questions about the sexual assault. Id.

At the suppression hearing, Appellant solely argued that at no point

during the interrogation did Detective Henry inform him he was being

investigated for the sexual assault of E.M.3 See N.T., 12/20/17, at 12-14, 25.

3 Appellant’s suppression motion raised additional claims, that: he was given a Miranda warning at 8:42 a.m. and interrogated for more than 12 hours; he made the incriminating statement “near the end of the [12] hour interrogation;” the statements he made “closer to the Miranda warnings [were] completely different from the statements [he] gave . . . later[;]” and the Miranda warnings “became stale or too remote.” Appellant’s Motion to Suppress, 6/28/17, at 2-5 (unpaginated).

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When asked why not, Detective Henry consistently responded: (1) he was

investigating the homicide, which was the basis of Appellant’s arrest; and (2)

in so doing, the detective wanted to determine whether Appellant knew E.M.,

as well as the relationship between Appellant and Co-Defendant. Id. at 13,

22, 30. Detective Henry explained: “[E.M.] identified [Appellant] as one of

the actors [in the sexual assault.] We were establishing how she might have

known him[.]” Id. at 30.

In closing argument, Appellant contended the suppression court “[must]

look at the timeline[:]” he was arrested at 6:49 a.m., waived his Miranda

rights, but was “never advised” he was being investigated for a sexual assault.

N.T., 12/20/17, at 32. The suppression court acknowledged that individuals

questioned about one crime may talk about other crimes:

Well, now that the facts are flushed out, you can tell me . . . I bring a guy in for crime Y, and in order to clear [himself] up, he wants to talk about why he’s not guilty of crime Y[. H]ow far the tree can he go down and ask him about, well, [I]f you didn’t do crime Y, the man will voluntarily tell me why he didn’t [sic]. And while doing so, he talks about crime X.

Where am I going, talk to me.

Id. at 32.

Appellant responded that for six hours, he denied committing the

homicide, “[t]hen we have four hours of radio silence, where we don’t know

what happens[,]” and following this break, “the first thing” the detectives

asked him was about the sexual assault. N.T., 12/20/17, at 33. Appellant

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concluded, “There’s no way [he] realized he had a right not to answer

questions [about the] sexual assault.” Id. at 34.

The Commonwealth responded that in Commonwealth v. Moss, 543

A.2d 514 (Pa. 1988), the “Pennsylvania Supreme Court noted that it has never

held that a suspect must be informed of each and every crime for which is he

under investigation.” N.T., 12/20/17, at 35. The Commonwealth also cited

Commonwealth v. Green, 683 A.2d 659 (Pa. Super. 1996), in which the

defendant broke into a police officer’s apartment, took the officer to a remote

area, and shot him twice in the head. N.T., 12/20/17, at 36; see Green, 683

A.2d at 660-61. Detectives questioned the defendant about the subsequent

theft of a vehicle, did not tell him about the underlying homicide, but

nevertheless asked the defendant whether he knew the officer. 4 N.T.,

12/20/17, at 36. We note that on appeal, this Court affirmed the denial of

the defendant’s motion to suppress the statement. Green, 683 A.2d at 666.

4 In its argument, the Commonwealth omitted details about the Green case. See N.T., 12/20/17, at 36. We note that in Green, the defendant fled from Pennsylvania to Florida, stealing a van in North Carolina in the course thereof. Green, 683 A.2d at 661. He was arrested in Florida. Id. Meanwhile, a missing persons report about the victim police officer was released nationwide. Id. A Florida detective met with the defendant in a Florida prison, but did not indicate he would ask questions about the missing Pennsylvania officer. Id. The defendant “claim[ed] he thought the questioning would be limited to the [van] theft.” Id. The detective asked if the defendant knew the officer, pointing out they were from the same town, and the defendant had left that area around the same time the officer was reported missing. Id. The defendant subsequently made incriminating statements relating to the officer. Id. The defendant’s motion to suppress those statements was denied by the trial court, and on appeal, this Court affirmed. Id. at 662, 666.

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At the suppression hearing in the instant case, the Commonwealth argued the

facts of this case were analogous to those in Green — here, Detective Henry

“brought in [Appellant] to talk about the homicide,” but then asked him about

the sexual assault of E.M. in order to “corroborat[e] the fact [E.M.] knew

[Appellant], and that’s how she could ID him from the night of the murder.”

N.T., 12/20/17, at 37. The Commonwealth concluded the detectives could

properly ask “about other crimes,” as permitted by Green and Moss. Id.

It is at this juncture that the suppression court announced the ruling

that is quoted by the Majority:

I’ll be as specific as I can. I’ll deny the motion to suppress in that Miranda . . . has taken us so many directions [sic]. I know what I’m looking for as far as a defendant not being advised what he’s questioned about. I understand that means. [sic] I guess it’s a pointed issue. When he starts saying someone is given a statement that they have [waived] their rights and want to speak and take the train down the track. I’m not ready to find those facts here, [Appellant’s counsel], and I deny the motion at this time.

See N.T., 12/20/17, at 37 (emphasis added); Maj. Op. at 13.

While the suppression court’s above statement, when read in isolation,

could be deemed incomplete, I would conclude we may review the statement

in the context of the evidence presented, the parties’ arguments, and the

suppression court’s other statements at the hearing. I note that in

Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002) (en banc),

the trial court similarly did not state its findings of fact on the record at the

conclusion of the suppression hearing. Id. at 1200. Nevertheless, this Court

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reviewed the trial court’s Rule 1925(a) opinion, which addressed the

suppression issue. Id. We then reached the merits of the defendant’s

suppression challenge, based “[u]pon consideration of [the] circumstances as

documented in the record of the suppression hearing[.]” Id. at 1202.

In this appeal, I would conclude, analogously, that the suppression

court’s lack of a more formal or complete statement is not fatal to our review.

See Reppert, 814 A.2d at 1202. The Majority is not granting a new

suppression hearing on the basis of any merit to Appellant’s claims, but rather

on a determination that we lack sufficient reasoning from the suppression

court. I disagree with the Majority that, under the particular circumstances

presented, the suppression court’s brief statement is such a fatal flaw

requiring the grant of a new suppression hearing.

As stated above, the sole issue Appellant developed at the hearing was

the lack of notice that he was also being investigated for the sexual assault.

The suppression court heard the parties’ extensive arguments on this point

and denied Appellant relief. See N.T., 12/20/17, at 37 (“I know what I’m

looking for as far as a defendant not being advised what he’s questioned

about.”). For the foregoing reasons, I disagree that a remand is necessary

for the trial court to decide, anew, “whether Appellant was aware he could be

questioned about the [sexual] assault, even though the Miranda warnings

pertained only to the homicide.” See Maj. Op. at 18. Instead, I would

conclude we may find record support for the suppression court’s ruling.

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Furthermore, I would affirm the suppression court’s finding on this issue.

The Commonwealth correctly argued, and Appellant did not dispute, that in

Green, this Court “note[d] that the United States Supreme Court has held

that there is no requirement that a suspect have knowledge of the specific

crimes about which he or she is to be questioned.” See Green, 683 A.2d at

664, citing Colorado v. Spring, 479 U.S. 564 (1987). See also

Commonwealth v. Travaglia, 467 A.2d 288, 293 (Pa. 1983) (Miranda does

not require that a suspect be provided information as to the crime under

investigation, although this Court has held “a suspect must have ‘an

awareness of the general nature of the transaction giving rise to the

investigation,’ in order to make an intelligent and understanding waiver of his

rights”).

In any event, in Green, as stated above, the defendant was arrested

for the theft of a van. Green, 683 A.2d at 661. Upon questioning the

defendant about this offense, the detective did not inform him he would also

ask questions about the missing Pennsylvania police officer. Id. at 661.

Nevertheless, we held the defendant’s Miranda waiver was knowing and

intelligent, where the theft of the van “was directly related to” the homicide

and the defendant’s flight from Pennsylvania. Id. at 664-65.

Here, the two crimes — the sexual assault and homicide — were not

unrelated incidents with no common connection, but instead were closely

linked, as they both involved E.M. It was E.M. who identified Appellant as one

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of the intruders. E.M. was also the romantic partner of Co-Defendant, another

suspect in the homicide. Indeed, the sexual assault of E.M. provided the

impetus for the homicide. At the suppression hearing, the detective testified

he wanted to establish how Appellant and E.M. knew each other, as well as

how Appellant and Co-Defendant knew one another. See N.T., 12/20/17, at

13, 22-23, 30. Accordingly, I would affirm the suppression court’s finding as

to the particular point raised at the suppression hearing — whether Appellant

had “an awareness of the general nature of the transaction giving rise to the

investigation.” See Travaglia, 467 A.2d at 293; Green, 683 A.2d at 660-

61.

Furthermore, I disagree with the Majority that we should remand for

findings of fact as to other issues: whether Appellant’s afternoon statements

were materially different from his initial remarks; what transpired during the

breaks between his written statements; and the continuity of Appellant’s

statements. See Maj. Op. at 18-19. Although he briefly referred to these

points in his suppression motion, Appellant did not articulate any of these,

much less develop them, at the hearing. On appeal, Appellant does not raise

any claim that he was precluded from doing so. I disagree with the Majority

that the suppression court was deficient in not addressing these specific

factual issues, and instead would conclude Appellant simply did not raise them

at the hearing.

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To the extent Appellant also implied, at the suppression hearing, that

the Miranda warnings were stale or too remote with respect to his statements

about the sexual assault, I would conclude no relief is due. See N.T.,

12/20/17, at 32 (“You have to look at the timeline. [Appellant was] arrested

at 6:49 a.m. [and] waive[d] Miranda. And as it relates to a [sexual assault],

he’s never advised he’s a suspect, being investigated, being charged.”). I

incorporate the Majority’s discussion of the factors set forth in

Commonwealth v. Bennett, 282 A. 2d 276 (Pa. 1971), for evaluating

whether repeated Miranda warnings are necessary. See Maj. Op. at 14. I

also reference the Majority’s summary of Commonwealth v. Riggins, 304

A.2d 473 (Pa. 1973), which stated, in part, “There is no prophylactic rule that

a suspect must be re[-]warned of his constitutional rights each time custodial

interrogation is renewed. Instead, we must view the totality of circumstances

in each case to determine whether such repeated warnings are necessary.”

See Maj. Op. at 14.

Additionally, I note that in Commonwealth v. Garland, 63 A.3d 339

(Pa. Super. 2013), this Court stated: “[V]oluntary statements by an accused,

given more than six hours after arrest when the accused has not been

arraigned, are no longer inadmissible per se. Rather, regardless of the time

[the statements were made], courts must consider the totality of the

circumstances surrounding the confession.” Id. at 343 (citation omitted).

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“[T]he appellate courts have expressly rejected the position that the length of

time is determinative.” Id.

As the Majority points out, the Riggins Court held that under the

following facts, police were required to readvise the defendant of his Miranda

rights: the passage of 17 hours from the initial Miranda warning and the

confession; the fact that the warning was given in a police car by police

officers, while the interrogation was conducted at the police station by

different officers; and the confession was “materially different” from the

defendant’s initial denials of involvement. See Riggins, 304 A.2d at 478;

Maj. Op. at 14.

I would conclude the facts presented in this case are distinguishable.

Here, it is not disputed that Detective Henry advised Appellant of his Miranda

rights at the police station, which is also where the questioning occurred, and

the same detective interviewed Appellant. See N.T., 12/20/17, at 6.

Appellant was advised of his Miranda warning at 8:42 a.m., and was formally

interviewed in three blocks of time: (1) 9:27 a.m. to 10:56 a.m.; (2) 2:56

p.m. to 3:35 p.m.; and (3) finally, beginning at 5:39 p.m.. 5 See Appellant’s

Motion to Suppress 3; N.T., 12/19/18, at 136, 146, 152, 155. Although

Appellant initially denied having sexual contact with E.M., he subsequently

volunteered that he “wanted to tell the truth about that,” and admitted he and

5Neither the suppression hearing nor trial transcript indicates when the third period of questioning ended.

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Co-Defendant both had sex with the victim. Id. at 143, 152-53, 158.

Appellant has made no claim of coercion by the police detectives. Under the

totality of the circumstances, I would conclude the suppression court did not

err in denying Appellant relief on a claim that the Miranda warning was stale

or too remote to remain valid. See Riggins, 304 A.2d at 477. See also

Garland, 63 A.3d at (defendant’s statement, made within five hours from the

time he was brought to police station, was voluntarily).

As I would deny relief on Appellant’s suppression claim, I would consider

his final issue, a challenge to the discretionary aspects of his aggregate 20 to

40 year sentence.

For the foregoing reasons, I respectfully concur in part and dissent in

part.

Judges Bowes, McLaughlin and King join this Concurring/Dissenting

Opinion.

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