Com. v. Holloway, S.

J. A34008/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHANE SHAQUILL HOLLOWAY, : No. 820 MDA 2014
:
Appellant :

Appeal from the Judgment of Sentence, April 9, 2014,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0002479-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 23, 2015

The instant prosecution stemmed from the fatal shooting of Courtney

Jackson. Following a jury trial, appellant was convicted of second degree

murder, 18 Pa.C.S.A. § 2502(b), robbery, 18 Pa.C.S.A. § 3701(a)(1)(i),

firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1), and

tampering with physical evidence, 18 Pa.C.S.A. § 4910(1).1 Herein,

appellant appeals from the judgment of sentence entered on April 9, 2014.

We affirm.

Illiana Luciano (“Luciano”) was dating Jackson (“the victim”). On

March 4, 2013, the two spent time together until approximately 5:00 p.m.

(Notes of testimony, 3/24/14 at 69-71.) At this time, Luciano drove the

1
Counts of conspiracy and furnishing false reports to authorities were
withdrawn by the Commonwealth.
J. A34008/14

victim around the corner to the Turkey Hill store where he was to meet with

an acquaintance known as “Layton.” (Id. at 72.) Luciano did not

communicate with the victim again until approximately 6:30 p.m. when the

store clerk at the B & W Corner Store notified her that the victim had

purchased something in the store but never came to retrieve it. (Id. at 77.)

Wayne Cameron (“Cameron”) testified to his observations of the

events on March 4, 2013. At 8:00 p.m., Cameron was outside of his home

near the B & W Corner Store when he discovered a young man, later

identified as the victim, lying face down in the alleyway. (Id. at 91.)

Cameron approached and found the victim covered in blood and saw foam

coming from his mouth. He found that the victim did not have a pulse.

Cameron explained that the victim’s body was outstretched as if he was

running with both hands extended from his body. (Id. at 91, 95.) The

victim was holding a cell phone in one of his hands that was ringing

repeatedly, and a picture of a woman continued to appear on the screen as

the phone rang. (Id. at 96-97.)

The police investigated and recovered fired shell casings from a

.40 caliber and a .25 caliber gun. Dr. Wayne Ross performed an autopsy

and also examined the crime scene photos. (Notes of testimony, 3/25/14

Vol. I at 57-58.) The victim had been shot several times in the chest, his

arm, and his back. (Id. at 61.) When the clothing was removed from his

body, Ross observed eight gunshot wounds -- four were to the left arm,

-2-
J. A34008/14

three to the left side of his chest, and one to his back. (Id. at 71.) Three of

the gunshot wounds were fatal with two being made by the .25 caliber

bullet. Based on gunpowder residue, Dr. Ross testified that he was shot at a

distance of greater than four feet away from the .40 caliber gun and two to

three feet away from the .25 caliber gun. (Id. at 69-70.) Dr. Ross

determined that the body had to have been face down prior to being face up

at the crime scene due to the foliage and soil on his body. (Id. at 60.) A

.40 caliber bullet was recovered at the scene from beneath the victim’s T-

shirt.

Layton Potter, a friend of the victim’s, testified to the events of

March 4, 2013. (Notes of testimony, 3/25/14 Vol. II at 4.) Potter explained

that the victim used to sell marijuana and cocaine to him. (Id. at 5-6.) On

March 4, 2013, Potter had placed a call between 1:00 p.m. and 3:00 p.m. to

the victim that he wanted to buy drugs. (Id. at 6-7.) The plan was for

Potter to pick up the victim at the Turkey Hill Store and drive him to 19 th and

North Street where the victim gave cocaine to Potter. (Id. at 8.) Potter

then drove home to smoke the drugs at his house. Later that evening,

Potter wanted to buy more cocaine and called the victim again at 7:00 p.m.

The men agreed to meet at North Street across from the B & W Corner

Store. The exchange took place in Potter’s car. (Id.)

The men then went into the store, and Potter saw appellant with

Tyya Barnes across the street. Potter observed appellant and Barnes

-3-
J. A34008/14

“huddling,” which is street terminology for leaning in towards each other and

conversing quietly; he also observed them making hand gestures. (Id. at

10, 15-18.) The victim indicated that he was going to conduct a drug

transaction with appellant and Barnes. (Id. at 19.) The victim then took

Potter home, and that was the last time Potter saw him alive.

Detective Jeffrey Schriver responded to the scene following an

emergency call reporting what had happened in the alley. Upon arrival, he

noticed Jackson’s cell phone ringing and copied the incoming phone numbers

that appeared on the screen. (Notes of testimony, 3/25-26/14 Vol. III at

48.) The last call that was received and answered by Jackson was from a

number which belonged to Barnes.

On March 6, 2013, Detective Schriver conducted a voluntary interview

with appellant at the Harrisburg police station. (Id. at 50-53.) During the

interview, appellant stated that on March 4, 2013, he was not at the location

where the victim was shot and killed. Appellant stated that he learned about

the victim’s death via Facebook.

On March 8, 2013, Detective Joseph A. Zimmerman conducted a

second interview with appellant and recorded his statements. (Id. at 110.)

Appellant was brought to the police department for a non-custodial

interrogation; at this point, appellant was considered a person of interest but

not a suspect. (Id. at 112-113.) Detective Zimmerman met appellant in

the interview room with Detective Schriver and stated that the interview sas

-4-
J. A34008/14

going to be non-custodial and that appellant was free to leave anytime. In

an abundance of caution, Detective Zimmerman also gave appellant his

Miranda2 rights orally and in writing, which he signed. (Id. at 114.)

During this recorded statement, appellant admitted that Barnes made

a phone call to the victim to arrange a meeting at 7:00 p.m. at 19 th and

North Street. (Id. at 131.) The men met the victim and then proceeded to

Barnes’ car, which was parked in a dark alleyway several blocks away, so

the victim could use his scale. (Id. at 132.) Appellant averred that while

the victim was trying to weigh the drugs in the backseat, Barnes opened fire

using two different caliber firearms which were in the car. (Id.) Appellant

noted that one of the guns sounded louder than the other. Appellant

explained that he heard more shots fired from the softer-sounding gun. (Id.

at 139.) Appellant alleged that he ducked down and did not see what part of

the victim’s body had been shot. (Id. at 140.) When asked what happened

to the shell casings in the car, appellant said that he picked them up and

explained “we flushed them down the toilet” at appellant’s house. (Id. at

132-133.) Appellant averred that Barnes was in possession of his two guns

and the victim’s gun.

Appellant initially stated that he pulled the victim out of the car and

laid him on the ground. (Id.) Appellant stated he was unsure as to whether

Barnes took any drugs that had been left in the vehicle. (Id. at 134.)

2
Miranda v. Arizona, 384 U.S. 436 (1966).

-5-
J. A34008/14

However, appellant began to change his statement when

Detective Zimmerman indicated that the autopsy report concluded the victim

was shot outside of the vehicle. (Id. at 141.) Appellant then stated that the

victim had a gun, so Barnes got out of the car and shot the victim while

appellant was pulling the victim out of the car. (Id. at 141.) When

appellant was pulling the victim out of the car, Barnes fired the last shot into

the victim. The victim’s gun then fell onto the ground, and appellant picked

it up and gave it to Barnes. (Id.) Appellant also stated that he picked up

the casings from the interior of the car. (Id. at 142.)

Cell phone records established that Barnes called the victim three

times. Appellant stated that during the calls, Barnes, appellant, and the

victim discussed obtaining scales to weigh the drugs. Store surveillance

footage introduced at trial showed the victim purchasing a scale from a

convenience store in Harrisburg. Appellant stated that Barnes was buying

the drugs, and he denied knowing how much Barnes had planned to buy.

(Id. at 144.) Appellant averred that the men had never talked about a plan

to rob the victim. (Id.)

Appellant’s girlfriend, Emily Latshaw, testified that appellant and

Barnes both asked her to lie to the police after the victim was killed;

Latshaw admitted that she initially lied when talking to the police. (Id. at

33-35, 43.) Latshaw, who lived with appellant, also testified that she

-6-
J. A34008/14

observed a disruption in their routine after the victim was killed. (Id. at 36-

37.)

Appellant was charged with the aforementioned crimes. Prior to trial,

appellant filed a motion to suppress the statements made to the police on

March 8, 2013. A hearing was held on March 20, 2014, and the trial court

denied the motion on March 21, 2014. On March 24, 2014, a jury trial

commenced, and on March 27, 2014, appellant was found guilty of the

aforementioned crimes. On April 9, 2014, appellant was sentenced as

follows: count 1 (second degree murder) life imprisonment; count 2

(robbery) merged with count 1, count 4 (carrying a firearm without a

license) two to five years’ incarceration, concurrent to count 1; count 5

(tampering with evidence) six months to two years’ incarceration, concurrent

with count 1. A timely notice of appeal was filed on May 9, 2014. Appellant

filed a concise statement of errors complained of on appeal on July 7, 2014;

the trial court has not filed an opinion.

The following issues have been presented for our review:

I. Whether the trial court committed a
fundamental error of law where it erroneously
instructed the jury that an accessory after the
fact may be liable as an accomplice where such
instruction misled and confused the jury, and
prejudiced Appellant as the charge permitted a
finding of guilt without requiring the
Commonwealth to establish the critical
elements of accomplice liability beyond a
reasonable doubt?

-7-
J. A34008/14

II. Whether the Commonwealth failed to present
sufficient evidence to sustain Appellant’s
convictions for: murder and robbery where the
Commonwealth failed to prove that Appellant
possessed specific intent for the crime of
robbery, and; carrying a firearm without a
license and tampering with evidence where the
Commonwealth failed to prove that Appellant
was the individual who committed the crimes
in question?

III. Whether the trial court erred in failing to
suppress Appellant’s statements where
Appellant invoked his right to silence but was
denied his right to silence in violation of
Article I, Section 9 of the Pennsylvania
Constitution and the Fifth Amendment to the
United States Constitution?

Appellant’s brief at 8.

Appellant first submits that the trial court erroneously instructed the

jury. Our standard of review in assessing a trial court’s jury instructions is

as follows:

[W]hen evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole,
and not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion
in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately,
and accurately presented to the jury for its
consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is
there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014).

-8-
J. A34008/14

Appellant directs us to the following portion of the trial court’s

instruction:

You may find that the Defendant is an accomplice in
a case if the following two elements are established
beyond a reasonable doubt: The first one is that the
Defendant had the intent to promote or facilitate the
commission of the crime . . . . The second element
is that the Defendant solicits, commands,
encourages, [sic] requests the other person to
commit it, or aids or agrees to aid or attempts to aid
the other person in the planning of the crime, the
committing of it, or even the exiting or afterwards.

Notes of testimony, 3/27/14 at 14-15.

Relying on Commonwealth v. McCleary, 381 A.2d 434 (Pa. 1977),

appellant argues that a jury instruction for accomplice liability for second

degree murder is improper when the defendant is an accessory after the

fact. We find McCleary to be easily distinguishable. In McCleary, the

defendant and his cohort planned to burglarize the home of an elderly

woman, or else obtain money by a ruse. Id. at 435. However, only after

his cohort exited the vehicle carrying a tire iron did the defendant realize

that force was going to be used. Id. Almost immediately thereafter, the

defendant left the area. Id. The defendant’s cohort broke into the woman’s

home and killed her with the tire iron. Id. Later, the defendant and another

person returned and picked up the cohort; however, the defendant did not

actually learn of the homicide until sometime thereafter.

Our supreme court held that the trial court erroneously instructed the

jury so that “a reasonable understanding of the jury could have been that

-9-
J. A34008/14

aid only in the flight of the felon would make an accomplice guilty of a prior

murder of which the accomplice knew nothing.” Id. at 436. The McCleary

court explained:

Flight might be part of a felony for a given statutory
purpose, i.e., a killing during flight can be considered
as a killing during the commission of a felony. That
does not mean that one who only aids flight without
participating in the felony plan and without
knowledge of a death in the commission of the felony
can be held responsible for the killing.

Id.

Instantly, appellant was well aware of Barnes’ shooting of the victim.

In his statement to the detectives, appellant admitted he was with Barnes

the entire time and stated Barnes shot the victim multiple times. In fact,

appellant was holding the victim as Barnes fired the last shot. Therefore,

McCleary is wholly inapposite as appellant actively participated in the

underlying offense. Appellant’s involvement went well beyond just providing

a means of escape for Barnes.

Appellant also suggests that the court’s instruction allowed the jury to

unlawfully convict him even if it believed that appellant only learned of

Barnes’ plan to kill the victim after the fact. (Appellant’s brief at 18.)

However, appellant could still be found guilty as an accomplice where the

killing was done in furtherance of the predicate felony. The statute defining

second degree murder does not require that a homicide be foreseeable;

rather, it is only necessary that the accused engaged in conduct as a

- 10 -
J. A34008/14

principal or an accomplice in the perpetration of a felony. Whether evidence

sufficiently indicates that a killing was in furtherance of a predicate felony

can be a difficult question. Commonwealth v. Laudenberger, 715 A.2d

1156, 1160 (Pa.Super 1998). The question of whether the killing was in

furtherance of the conspiracy is a question of proof for the jury to resolve.

Commonwealth v. Middleton, 467 A.2d 841, 848 (Pa.Super. 1983). It

does not matter whether the appellant anticipated that the victim would be

killed in furtherance of the conspiracy. Id. Rather, the fact-finder

determines whether the appellant knew or should have known that the

possibility of death accompanied a dangerous undertaking. Id. No relief is

due.

Next, appellant contends the evidence was insufficient to support his

convictions as the Commonwealth established no more than his presence at

the scene. Appellant argues that, at most, the evidence established his

intent to purchase drugs from the victim. (Appellant’s brief at 19, 22-23.)

Based on the evidence viewed in the light most favorable to the

Commonwealth, we disagree.

In reviewing a sufficiency challenge, we apply the following

well-settled principles:

The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above

- 11 -
J. A34008/14

test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to
believe all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa.Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805

(Pa.Super. 2008), appeal denied, 980 A.2d 606 (Pa. 2009)

A defendant commits second-degree murder when he is a principal,

accomplice, or co-conspirator to a statutorily-enumerated felony and a

person is killed in the course of that felony’s commission. 18 Pa.C.S.A.

§ 2502(b); Commonwealth v. Knox, 50 A.3d 732, 739 (Pa.Super. 2012),

appeal denied, 69 A.3d 601 (Pa. 2013). The defendant need not be a

party to a completed crime; rather, one perpetrates a felony when he

engages in or is an accomplice to a completed felony, an attempt to commit

a felony, or flight after committing or attempting to commit a felony. 18

Pa.C.S.A. § 2502(d).

- 12 -
J. A34008/14

Robbery is among the enumerated felonies that may satisfy the

predicate-offense element of second-degree murder. Id. A person commits

robbery where, inter alia, in the course of committing a theft, he inflicts or

threatens serious bodily injury on another, commits or threatens

immediately to commit any felony of the first or second degree, or takes or

removes property from the person of another by force however slight.

18 Pa.C.S.A. § 3701(a)(1). The evidence is sufficient to sustain a robbery

conviction where the defendant intentionally assists his cohort with the

robbery, even if he or she did not carry a weapon, employ threats, or cause

injury. E.g., Commonwealth v. Everett, 443 A.2d 1142, 1145 (Pa.Super.

1982).

The very nature of accomplice liability is that one who actively and

purposefully engages in criminal activity is criminally responsible for the

criminal actions of his/her co-accomplice which are committed in furtherance

of the criminal endeavor. However, in order to impose this form of criminal

liability, the individual “must be an active partner in the intent to commit [a

crime].” Commonwealth v. Fields, 333 A.2d 745, 747 (Pa. 1975).

Further, an accomplice “must have done something to participate in the

venture.” Commonwealth v. Flowers, 387 A.2d 1268, 1270 (Pa. 1978).

Such a finding cannot be based upon mere assumption or speculation.

“Mere presence at the scene is insufficient to support a conviction: evidence

- 13 -
J. A34008/14

indicating participation in the crime is required.” Commonwealth v.

Keblitis, 456 A.2d 149, 151 (Pa. 1983).

We find that there was substantial evidence presented that appellant’s

role in the events giving rise to the charges was more extensive than merely

being present. First, during appellant’s first statement to the police, he lied

and stated he did not know anything about the victim’s death. Thereafter,

on March 6, 2012, appellant admitted to Detective Zimmerman, he was

present with Barnes from the time the call was placed to the victim to

arrange a meeting until the time when the victim was shot, and when the

victim was left dead on the roadway. However, when confronted with the

physical evidence, appellant changed his story again and stated that the

victim was shot outside of the car. Both appellant and Barnes fled the

scene, and appellant admitted that the men destroyed evidence. Two

different guns were used, and the victim sustained multiple gunshot wounds

from each weapon at close range. We find that a conspiratorial agreement

can be reasonably deduced from these facts. The jury was free to infer a

consciousness of guilt because appellant’s inconsistent statements and flight

were efforts to avert suspicion. See Commonwealth v. Donnelly, 653

A.2d 35 (Pa.Super. 1995), appeal denied, 663 A.2d 686 (Pa. 1995)(false

and contradictory statements by the accused are evidence from which a jury

may infer that they were made with the intent to mislead police and are

indicative of guilt); Commonwealth v. Coyle, 203 A.2d 782 (Pa. 1964)

- 14 -
J. A34008/14

(flight as evidence of consciousness of guilt may form the basis in

connection with other proof from which guilt may be inferred). Appellant’s

girlfriend also testified that his behavior changed after the incident and he

asked her to lie for him; again, the jury was free to infer a consciousness of

guilt. All of this evidence supports appellant’s complicity in the crimes and

not an innocent bystander.

Appellant also argues that the Commonwealth failed to prove that

appellant carried a firearm without a license. (Appellant’s brief at 26.) It is

a crime in Pennsylvania to carry a firearm without a valid and lawfully issued

license. 18 Pa.C.S.A. § 6106(a)(1). The Commonwealth can prove

possession through the doctrine of constructive possession.

Commonwealth v. Duffy, 340 A.2d 869, 870 (Pa.Super. 1975). To do

this, the Commonwealth must present evidence to show that appellant had

both the power to control the firearm and the intent to exercise that control.

Id.

Again, through appellant’s own admission, he retrieved the gun that

fell out of the victim’s pocket when he allegedly pulled the victim out of the

car. Appellant also admitted that he drove Barnes home in the car with the

weapons. It was stipulated that appellant did not have a license to carry a

weapon. Thus, the Commonwealth presented sufficient evidence to support

his conviction.

- 15 -
J. A34008/14

Finally, appellant argues that the Commonwealth did not prove that

appellant tampered with evidence on the night in question. It is also a crime

in Pennsylvania where a defendant, believing that an official proceeding or

investigation is pending or about to be instituted, alters, destroys, conceals,

or removes anything with intent to impair its verity or availability in such a

proceeding or investigation. 18 Pa.C.S.A. § 4910(1). Appellant admitted to

collecting the spent shell casings, therefore removing evidence. The

statement appellant provided to the police also indicates that appellant and

Barnes flushed the casings down the toilet at appellant’s house. No relief is

due.

The last issue presented is whether the trial court erred in denying his

motion to suppress his March 8, 2013 confession; appellant argues that his

statement should be suppressed because he asserted his right to remain

silent. We disagree.

Our standard of review in addressing a challenge to a
trial court’s denial of a suppression motion is limited
to determining whether the factual findings are
supported by the record and whether the legal
conclusions drawn from those facts are correct.
Since the prosecution prevailed in the suppression
court, 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 factual findings of the trial court, we are
bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.

- 16 -
J. A34008/14

Commonwealth v. Minnich, 874 A.2d 1234, 1236 (Pa.Super. 2005)

(citation omitted).

We briefly review the facts presented at the suppression hearing.

Detective Richard Iachini testified that on March 6, 2013, he was directed to

speak with appellant to see if he would agree to come to the police station to

speak with the police. (Notes of testimony 3/20/14 at 9-11.) The detectives

arrived, in plain clothes, to appellant’s home. Appellant agreed and

voluntarily got in the back seat of the unmarked police car; he was not

handcuffed or searched. Detective Iachini stated the mood was “nonchalant

. . . calm and laid back.” (Id. at 12.)

Detective Jeffrey Schriver was one of the detectives that interviewed

appellant on March 6, 2013; appellant was not Mirandized. (Id. at 39.)

Detective Schriver testified that the police had obtained the victim’s

telephone records and established that Barnes was the last person he spoke

to before he was shot. As Barnes had told the officers that he had been with

appellant the day of the homicide, the officers wanted to investigate Barnes’

alibi. (Id. at 36.) At this point, the officers had no reason to believe that

appellant was involved with the shooting death. (Id.) The detective asked

appellant about his whereabouts, and he was not questioned about his

involvement with the murder of the victim. The detective did not “ask

[appellant] any questions that in [his] mind . . . would elicit anything

- 17 -
J. A34008/14

incriminating.” (Id. at 38.) Appellant agreed to have his statement tape

recorded; appellant then left. (Id. at 39.)

Officer Thomas Carter also testified at the suppression hearing.

Officer Carter explained that on March 8, 2013, appellant agreed to another

interview about his previous statements. (Id. at 24.) Officer Carter drove

appellant to the station and explained to him that he was not under arrest.

(Id. at 26.) Officer Carter testified that appellant was free to leave and was

not in custody at this time. (Id. at 27.) Appellant chose to sit and talk with

the officers.

Appellant met with Detective Zimmerman and Detective Schriver in an

interview room; the door was left open. (Id. at 40.) The purpose was to

speak with appellant about the discrepancies in his March 6 th statement.

(Id.) Appellant was told he was free to leave at any time and then he was

Mirandized; appellant signed a written waiver form. (Id. at 41-42.)

Thereafter, appellant’s statement was recorded.

Detective Zimmerman asked, “Are you willing to provide a statement

regarding the incident?” and appellant stated “no.” (Id. at 51.) Thereafter,

Detective Zimmerman began to ask appellant questions; he was not

re-Mirandized. (Id. at 51-52.) Detective Schriver, however, explained

that there was “some confusion.” (Id. at 51, 53.)

Well, prior to even starting this formal statement, we
asked [appellant], are you willing to provide a formal
statement. And he said yes. And we offered him
three ways to do it. He could handwrite it, we could

- 18 -
J. A34008/14

type it, or we could tape record it. He chose tape
recorded. So, you know, I recall him saying no, but
prior to that he indicated he would give us a
statement. ... After he said no,
Detective Zimmerman asked him two more times if
he was willing to provide a statement and appellant
said yes.

Id. at 53-54.

Herein, appellant came to and remained at the police station of his

own volition. He was repeatedly advised that he was free to leave at any

point. He was also advised of his Miranda rights while at the police station.

Thereafter, appellant agreed to provide a recorded statement.

We agree with the Commonwealth that the testimony presented at the

suppression hearing demonstrates that appellant’s initial response of “no”

caused confusion as he had just agreed moments earlier that he was going

to speak to the police and that he wanted the statement recorded. The

questions posed following the answer of “no” were intended to clarify

appellant’s desire to give a recorded statement. The follow-up questions

clarified appellant’s true intention to waive his right to remain silent as

appellant continued to answer the questions that followed. See

Connecticut v. Barrett, 479 U.S. 523, 529-530 (1987) (defendant’s

agreement to answer oral questions but not give any written statement

without counsel present was unequivocal waiver of his right to remain

silent).

- 19 -
J. A34008/14

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2015

- 20 -