Com. v. Crawford, H.

J. S72026/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
HOLLY ANN CRAWFORD,                        :
                                           :
                         Appellant         :     No. 2284 MDA 2015

           Appeal from the Judgment of Sentence December 4, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0002431-2014

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 14, 2016

        Appellant, Holly Ann Crawford, appeals from the Judgment of Sentence

entered by the Luzerne County Court of Common Pleas following her

conviction by a jury of two counts each of First-Degree Murder and Criminal

Conspiracy.1 After careful review, we affirm on the basis of the trial court’s

Opinion.

        On April 21, 2014, Appellant and her boyfriend, James Roche, shot and

killed the two victims, Ronald “Barney” Evans and his son Jeffrey Evans, in

their home in Hunlock Creek, Pennsylvania. We adopt the facts as set forth

by the trial court. See Trial Court Opinion, filed 3/1/16, at 3-35. However,

for purposes of the appeal, we note the following relevant facts.

*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 903, respectively.
J. S72026/16


      Several witnesses described Roche’s anger toward Ronald Evans

stemming from Appellant’s previous intimate relationship with Ronald Evans,

and Roche’s history of violent behaviors involving firearms, including an

incident where Roche fired a weapon at Ronald Evans’ home.

      Appellant admitted that on April 21, 2014, after a night of drinking and

arguing about Appellant’s previous relationship with Ronald Evans, Roche

stated his intention to kill Ronald Evans.   Appellant agreed to join Roche,

and added that they should kill Jeffrey Evans as well. Roche and Appellant

left their home with two firearms and returned approximately one hour later.

      Police later found Ronald Evans and Jeffrey Evans in their home shot

to death. A broken portion of the trigger guard police recovered from the

Evans’ home belonged to one of the firearms Appellant and Roche had taken

from their own home, a .22 caliber rifle. When police attempted to arrest

Appellant and Roche, they both fled into the woods near their home with

seven knives and a wooden display case taken from the Evans’ residence, as

well as a loaded .44 caliber revolver.

      After initially denying any involvement in the shooting and denying

knowing Ronald and Jeffrey Evans, Appellant eventually admitted to being

present at the time of the shooting. Appellant told police that she acted as a

decoy when Ronald Evans initially refused to answer the door for Roche.

      In addition, witnesses described Appellant’s suspicious behaviors

indicating her consciousness of guilt, including plans to flee to Philadelphia



                                     -2-
J. S72026/16


using her mother’s vehicle and bank card, fleeing into the woods with Roche

after Appellant’s mother called the police, and statements to family

members to watch the news because she “did something real bad.”          Trial

Court Opinion, filed 3/1/16, at 15. Appellant admitted to her daughter that

she shot Ronald and Jeffrey Evans in the head and that she had no remorse,

stating “[i]t was just like shooting a deer.” Id. at 16.

      On December 2, 2014, Appellant filed an Omnibus Pre-Trial Motion

attempting to suppress her statements to police. On March 20, 2015, the

trial court denied Appellant’s suppression Motion after a hearing.

      A jury trial ensued, at which numerous witnesses testified. During the

testimony of Appellant’s mother, Moya Linde, the court permitted the

admission of a photo of the victims while alive despite Appellant’s objection.

The trial court provided a cautionary instruction.

      On September 23, 2015, the jury convicted Appellant of two counts

each of First-Degree Murder and Criminal Conspiracy.         On December 4,

2015, the trial court imposed a term of life imprisonment.

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant presents seven issues for our review, which we have

reordered for ease of disposition:

      1. Whether the trial court committed an error of law or abuse of
      discretion in denying [Appellant’s] Motion to Suppress her oral
      statement.



                                      -3-
J. S72026/16


      2. Whether the trial court erred in allowing the Commonwealth
      to publish pictures of the victims while they were alive.

      3. Whether the evidence was insufficient to convict [Appellant]
      on the crime of First[-]Degree Murder and Conspiracy.

      4. Whether the trial court committed an error of law or abuse of
      discretion in failing to issue a jury instruction on Involuntary
      Manslaughter.

      5. Whether the trial court committed an error of law based upon
      abuse of discretion [] in failing to issue a jury instruction on
      “ignorance or a mistake as to the matter of fact[.”]

      6. Whether the trial court erred in failing to issue a jury
      instruction as to whether [Appellant] was under a state of duress
      when the crime occurred.

      7. Whether the trial court committed an error of law or abuse of
      discretion in failing to issue a voluntary intoxication instruction.

Appellant’s Brief at 1.

      Appellant first challenges the denial of her Motion to Suppress her

statements to police.     Our standard of review in an appeal from an Order

denying a Motion to Suppress is as follows:

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.  Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation

omitted).


                                     -4-
J. S72026/16


        “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006). Our

scope of review from a suppression ruling is limited to the evidentiary record

that was created at the suppression hearing.        In re L.J., 79 A.3d 1073,

1085 (Pa. 2013).

        After a careful review of the parties’ arguments and the record, we

affirm on the basis of the trial court’s Opinion. See Trial Court Opinion at

17-20 (incorporating the 3/20/15 Trial Court Opinion, and concluding it

properly denied Appellant’s Motion to Suppress her statements to police

because Appellant knowingly, intelligently, and voluntarily waived her

Miranda2 rights as demonstrated through the written waiver and testimony

from police about the circumstances of the statement and waiver).

        Appellant next avers that the trial court improperly admitted “pre-

death photographs of the victims[,]” arguing that the photographs were

“irrelevant, prejudicial, and served no purpose other than to engender

sympathy.” Appellant’s Brief at 16.

        It is well settled that the “[a]dmission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the

trial court clearly abused its discretion.”   Commonwealth v. Tyson, 119

A.3d 353, 357 (Pa. 2015). “An abuse of discretion is not merely an error of

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



                                       -5-
J. S72026/16


judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.” Id. at

357-58.

        Certain “life-in-being” evidence in the form of testimony showing the

victim was alive at a time prior to the murder may be admissible during the

guilt phase of a murder trial. Commonwealth v. Jordan, 65 A.3d 318, 333

(Pa. 2013).      However, our Supreme Court has held that life-in-being

evidence in the form of photographs of a victim prior to his or her death “are

clearly   irrelevant    to    []   the   guilt   or   innocence   of   the   accused[.]”

Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa. 1994).

        Here, we agree with Appellant that the trial court improperly admitted

the photographs of the victims while alive. Nevertheless, our review of the

certified record and the arguments by the parties reveals that the error was

harmless.

        This Court will affirm the trial court’s Judgment of Sentence despite

trial   court   error    if   we    conclude      that   the   error   was    harmless.

Commonwealth v. Wright, 742 A.2d 661, 667 (Pa. 1999). Our Supreme

Court has noted that “[t]he doctrine of harmless error is a technique of

appellate review designed to advance judicial economy by obviating the

necessity for a retrial where the appellate court is convinced that a trial error

was harmless beyond a reasonable doubt. Its purpose is premised on the



                                            -6-
J. S72026/16


well-settled proposition that a defendant is entitled to a fair trial but not a

perfect one.” Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981)

(quotation and citations omitted).

      “Harmless error exists where: (1) the error did not prejudice the

defendant or the prejudice was de minimis; (2) the erroneously admitted

evidence was merely cumulative of other untainted evidence which was

substantially similar to the erroneously admitted evidence; or (3) the

properly admitted and uncontradicted evidence of guilt was so overwhelming

and the prejudicial effect of the error was so insignificant by comparison that

the error could not have contributed to the verdict.”     Commonwealth v.

Melvin, 103 A.3d 1, 20 (Pa. Super. 2014) (quotation and citations omitted).

      In this case, the Commonwealth introduced substantial evidence that

established that Appellant had committed the crimes of First-Degree Murder

and Criminal Conspiracy. As described by the trial court and confirmed by

our review of the record, Appellant admitted to numerous acts and

statements supporting her convictions, including her conversation with

Roche prior to the murders and her confessions of guilt to family members.

In light of this evidence and the trial court’s cautionary instruction to the

jury, any prejudice to Appellant was de minimis.     We, thus, conclude that

the trial court’s error was harmless, and Appellant’s challenge to the

admission of the photographs fails.




                                      -7-
J. S72026/16


      Appellant next challenges the sufficiency of the evidence supporting

her convictions for First-Degree Murder and Criminal Conspiracy. We review

claims challenging the sufficiency of the evidence by considering 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.” Commonwealth

v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014).

      The trier of fact—while passing on the credibility of the witnesses and

the weight of the evidence—may choose to believe all, part, or none of the

evidence.   Id. at 40.     Moreover, a jury may base a conviction solely on

circumstantial evidence. Id. In conducting our review, the appellate court

may not weigh the evidence and substitute its judgment for that of the fact-

finder. Id. at 39-40.

      It is well-established that “[t]o sustain a conviction for murder of the

first degree, the Commonwealth must prove that: (1) a human being was

unlawfully killed; (2) the person accused is responsible for the killing; and

(3)   the   accused     acted   with   malice   and   specific   intent   to   kill.”

Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015); 18 Pa.C.S. §

2502(a).    “Section 2502 of the Crimes Code defines murder of the first

degree as an ‘intentional killing,’” which, in turn, is defined as a “willful,

deliberate and premeditated killing.’”       Commonwealth v. Diamond, 83

A.3d 119, 126 (Pa. 2013) (citing 18 Pa.C.S. § 2502(a), (d)). “[T]he period



                                       -8-
J. S72026/16


of reflection required for premeditation to establish the specific intent to kill

may be very brief; in fact[,] the design to kill can be formulated in a fraction

of a second.    Premeditation and deliberation exist whenever the assailant

possesses the conscious purpose to bring about death.” Hitcho, supra at

746.

       To sustain the conviction for criminal conspiracy, there must be proof

beyond a reasonable doubt that the defendant “(1) entered into an

agreement to commit or aid in an unlawful act with another person or

persons, (2) with a shared criminal intent and (3) an overt act was done in

furtherance of the conspiracy. This overt act need not be committed by the

defendant;     it   need   only   be    committed     by   a    co-conspirator.”

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation

and quotation omitted). See also 18 Pa.C.S. § 903.

       The Honorable Fred A. Pierantoni III, sitting as the trial court, has

authored a comprehensive, thorough, and well-reasoned opinion, citing to

the record and relevant case law in addressing Appellant’s sufficiency claims.

After a careful review of the parties’ arguments and the record, we affirm on

the basis of the trial court’s Opinion. See Trial Court Opinion, 3/1/16, at 51-

56 (concluding that the evidence was sufficient to support Appellant’s

convictions based on Appellant’s conversation with Roche about the

shooting, Appellant acting as decoy, Appellant’s presence and actions in the

home during the shootings, Appellant’s flight with Roche after the shooting,



                                       -9-
J. S72026/16


Appellant’s admissions to police, Appellant’s inculpatory statements to third

parties, and the circumstantial evidence indicating Appellant’s consciousness

of guilt).

      In Appellant’s last four issues, she claims that the trial court

improperly failed to issue certain jury instructions she had requested,

including instructions regarding Involuntary Manslaughter, ignorance or

mistake, duress, and voluntary intoxication.

      Our standard of review in assessing a trial court’s jury instruction is as

follows:

      When 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). “The

trial court is not required to give every charge that is requested by the

parties and its refusal to give a requested charge does not require reversal

unless the Appellant was prejudiced by that refusal.”     Commonwealth v.

Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).

      After a careful review of the parties’ arguments and the record, we

affirm on the basis of the trial court’s Opinion.    See Trial Court Opinion,

3/1/16, at 36-50 (concluding: (1) Appellant was not entitled to an



                                    - 10 -
J. S72026/16


Involuntary Manslaughter jury instruction because Appellant’s defense at

trial was that she did not kill the victim and there was no evidence to

support such an instruction; (2) Appellant was not entitled to an ignorance

or a mistake of fact jury instruction because the evidence did not support

such an instruction where Appellant claimed throughout the trial “that she

did not plan, intend, agree to participate[,] or participate in the killing of one

or both of the victims[;]” (3) Appellant was not entitled to a duress jury

instruction because there was no evidence of a present and impending

threat and Appellant did not actually admit to engaging in the charged

conduct as required by 18 Pa.C.S. § 309(a); and (4) Appellant was not

entitled to a voluntary intoxication jury instruction because there was no

testimony or    evidence    that Appellant’s alcohol      use   overwhelmed or

overpowered her faculties or sensibilities in any way).

      The parties are instructed to attach a copy of the trial court’s Opinions

dated March 20, 2015, and March 1, 2016, to all future filings.

      Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2016




                                      - 11 -
                                                                                                 Circulated 11/28/2016 11:10 AM




, COMMON\VEAL TH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS

                                                                      OF LUZERNE COUNTY


                                v.

   HOLLY ANN CRAWFORD,
                                  Defendant                        No. 2431 of 2014


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                                                                                                                                          as that term is defined in Section 309. Stated

alternately, what conduct did James Roche engage in or exhibit that caused or

required Holly Crawford to agree to kill, assist in killing or kill one or both of the

victims? The answer based upon this record is none. As importantly, Holly

Crawford repeatedly affirmed her innocence during her trial testimony.

                        VOLUNTARY INTOXICATION

       In Commonwealth v. Miller, 664 A.2d 1310 (Pa. 1995) the court explained

in order to support a defense of voluntary intoxication, the evidence must establish

that, at the time of the murders, the defendant was overwhelmed by the effects of

alcohol to the point of losing her faculties and sensibilities, resulting in an inability

to form the specific intent to kill.

      In Miller the defendant was convicted of first degree murder and sentenced

to death. Miller argued the trial counsel was ineffective for failing to present a

voluntary intoxication defense. In rejecting this assertion the Supreme Court

observed that Miller did not allege that he was too intoxicated to understand what

he was doing "when he committed the murders" or that he was drunk. (Id. 664

A.2d at 1324 ).

      Additionally, in Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), an

opinion referenced by the Trial Judge in declining defense counsel's request to

instruct the jury on voluntary intoxication (Id. N.T. 983), the Supreme Court

explains that a defense of diminished capacity, whether grounded in mental defect

                                            49
or voluntary intoxication, is an extremely limited defense available only to those

defendants who admit criminal liability but contest the degree of culpability based

upon an inability to formulate the specific intent to kill. Absent an admission

from the defendant that he shot and killed the victim, trial counsel could not have

presented a diminished capacity defense. If a defendant does not admit that he

killed the victim, but rather advances an innocence defense, then evidence on

diminished capacity is inadmissible. Id. 25 A.3 d at 312 (citations omitted).

      It is evident that the record establishes that Holly Crawford was drinking and

may have been intoxicated on April 21, 2014. It is equally as evident that Holly

Crawford did not "admit criminal liability but contest the degree of culpability

based upon an inability to formulate the specific intent to kill" and thus a charge on

voluntary intoxication was not appropriate.

                          PHOTOGRAPHS OF VICTIMS

      Appellate counsel suggests the trial court erred in permitting the

Commonwealth to "publish pictures of the victims while they were alive" as this

was prejudicial, inflammatory and irrelevant. Counsel fails to identify when or

where in the transcript this occurred.

      As referenced during the summary of Moya Linde's testimony the

Commonwealth introduced photos of Barney Evans and Jeffrey Evans as

Commonwealth's Exhibit 16 and 17 respectively.



                                          50
       Defense counsel initially voiced no objection to Commonwealth Exhibit 16

(Id. N.T. 225) but subsequently asserted an objection to the photos at a sidebar

conference. (Id. N.T. 227).

       In overruling counsel's objection the trial judge permitted the witness to

identify both photographs and they were briefly displayed to the jury. The trial

judge additionally gave a cautionary instruction regarding the photographs. (Id.

N.T. 228). There was nothing about the nature or context of the photographs

which was likely to invoke sympathy on behalf of the victims or towards the

Commonwealth.      Moreover, the complained of evidence merely offered a fleeting

glimpse of the victims as live breathing human beings. The victim of a murder is

not merely a prop and references to his humanity are not inherently and unfairly

prejudicial.   Commonwealth v. Tedford, 960 A.2d l(Pa. 2008). We find no error

warranting the grant of a new trial.

                      SUFFICIENCY OF THE EVIDENCE

       As previously indicated appellate counsel, in conclusory fashion, simply

asserts that the evidence is insufficient to prove the defendant acted with malice,

had a specific intent, or conspired to kill either of the victims referencing a sliver

of the defendant's testimony.

       In reviewing the sufficiency of the evidence, we consider whether the

evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed

in a light most favorable to the Commonwealth as verdict winner, support the fact-

                                           51
finder's determination that all the elements of the offense have been proven

beyond a reasonable doubt. Commonwealth v. Montalvo, 956 A.2d 926 (Pa.

2008). In applying this standard, a reviewing court must bear in mind that the

Commonwealth may sustain its burden by means of wholly circumstantial

evidence.

      To obtain a conviction for first degree murder, the Commonwealth must

demonstrate that a human being was unlawfully killed; that the defendant did the

killing; and that the killing was done in an intentional, deliberate and premeditated

manner, which the Pennsylvania Supreme Court has construed to mean that the

defendant acted with the specific intent to kill. Commonwealth v. Cousar, 928

A.2d I 025, I 032 (Pa. 2007). Additionally, the Pennsylvania Supreme Court has,

on numerous occasions, reiterated that a specific intent to kill may be proven by

circumstantial evidence, and may therefore be inferred from the defendant's use of

a weapon on a vital part of the victims body. See Commonwealth v. Cousar;

Commonwealth v. Dowling, 883 A.2d 570 (Pa. 2005); Commonwealth v.

Williams, 854 A.2d 440 (Pa. 2004).

      In order to convict a defendant of conspiracy, the trier of fact must find that

(I) the defendant intended to commit or aid in the commission of the criminal act;

(2) the defendant entered into an agreement with another to engage in the crime;

and (3) the defendant or one or more of the other co-conspirators committed an

overt act in furtherance of the agreed upon crime. Each member of a conspiracy to

                                          52
commit homicide can be convicted of first- degree murder, regardless of who

inflicted the fatal wound or who fired the fatal shot. Commonwealth v. Smith,

985 A.2d 886, 897 (Pa. 2009).10. See also Commonwealth v. Patterson, 91 A.3d 55

(Pa. 2014).

         Moreover, flight, along with other circumstantial evidence, may support an

inference of a criminal conspiracy Commonwealth v. Devine, 26 A.3d 1139, 1147

(Pa. Super. 2011) citing Commonwealth v. Marguez, 980 A.2d 145, 150 (Pa.

Super. 2009) (en bane) appeal denied, 987 A.2d 160 (2009).

         Additionally, a defendant may be found guilty of first degree murder as an

accomplice.        In this context the Commonwealth must prove beyond a reasonable

doubt that the defendant independently possessed the requisite specific intent to

kill.   The specific intent to kill cannot be proven by evidence of intent to kill

possessed by the defendant's accomplice or co-conspirator.                           Commonwealth v.

Koehler, 36 A.3d 121, 153-154 (Pa. 2012) citing Commonwealth v. Huffman, 638

A.2d 961 (Pa. 1994).

         The factual summary of the testimony and evidence in this case was

undertaken not only to provide context for a consideration of the allegations of

error regarding this court's refusal to instruct the jury on certain affirmative




10
  The holding In Smith is Identical to that reached by the Pennsylvania supreme Court In Commonwealth v.
Boxley. 838 A.2d 608 (Pa. 2003) that all co-conspirators to first-degree murder can be found guilty regardless of
who actually inflicted the wound resulting In death.

                                                         53
defenses but also to provide the reader of this opinion with more than a cursory

understanding of the record.

        Appellant's reference to a fragment of testimony from one witness, the

defendant, in support of an argument that the evidence is insufficient not only fails

to satisfy the requirements for this assertion, it stands the applicable law on its

head.

        Appellant counsel's reliance on nine pages of the defendant's testimony

during direct examination blatantly ignores the testimony of the defendant's

mother and two daughters, the later of whom the defendant confided in and

confessed her guilt, as well as that of Margaret Moran. It additionally ignores the

defendant's statements to the Pennsylvania State Police on the evening of her

capture. This testimony has been summarized and will not be repeated.

        The members of the jury were obviously free to conclude that the nine pages

of testimony referenced by appellate counsel lacked plausibility.    Indeed, the

testimony concerning what occurred as Roche and Crawford watched Boondock

Saints and eventually left was consistent. James Roche repeatedly expressed his

intent to kill Barney Evans and Crawford suggested they should kill Jeffrey Evans.

The jury was free to disregard testimony that Crawford's suggestion in this regard

was merely sarcastic.

        The evidence collected at the scene clearly established the presence of two

weapons, one used by James Roche and one typically used by the defendant.

                                           54
      Holly Crawford called her daughter Tristin who she had not seen for two

years-for what purpose? The fact-finder could reasonably conclude it was done

with the express purpose of telling her daughter about her participation in the
  .
cnmes.

      The summarized evidence, including that of the defendant's cellmate,

Margaret Moran, established the defendant used Barney Evans to obtain money

and drugs. The jury was certainly free to conclude that Holly Crawford was not

only manipulative and cunning but that she was clearly capable of murder and

acted as an accomplice or principal in the killing of both victims.

      Crawford categorically denied making certain statements to Trooper

Polishan, such as acting as a· decoy or duck on the porch, and advised the jury she

only repeated what the state police told her. Recall that she initially denied

knowing Barney Evans or having any knowledge of what occurred that evening.

In this context, again, the jury could conclude that the defendant's variations or

versions of what occurred related by Trooper Polishan implicated her in the

murders.

      Additionally, her attempt to go to Philadelphia and then hide in the woods

with Roche, subsequent to the killings, was also evidence of her agreement to

participate with Roche in these murders.

      It is also interesting to note that Margaret Moran's testimony, during the

Commonwealth's case in chief, foreshadowed Crawford's testimony regarding her

                                           SS
plan, hatched after the killings, to testify she went to the Evans residence to

retrieve stolen Klonopin. Indeed, once the jury found Margaret Moran credible

they could conclude that Crawford repeatedly communicated with a man, who she

was purportedly afraid of, about potential defenses to these charges. The jury

could have additionally concluded that Crawford understood and, in fact, instigated

an argument with Roche about Barney to make Roche angry and jealous. The jury

could have also concluded that Crawford planned to kill Barney, since that is what

Crawford told Moran. The jury could have additionally concluded that items were

taken from the Evans home to make it look like a robbery. The jury cou1dhave

additionally concluded that Crawford herself shot Jeffrey Evans. The jury could

have additionally concluded that Crawford and Roche planned to go to

Philadelphia to sell the guns. The jury could have additionally concluded that

Crawford's testimony about Barney Evans appearing with the handgun and a

holster and threatening Roche was concocted after the murders in an attempt to

fashion a self-defense theory.

      Having presided in this matter it is obvious the jury resolved the issue of

credibility in favor of the Commonwealth and against the defendant, who assumed

the stand and although acknowledging traveling to and being present at the murder

scene, denied killing or helping to kill anyone.




                                          56
                                SUPPRESSION

      Appellant contends the court committed an error of law or abused its

discretion in denying a previously filed motion to suppress.

      On March 20, 2015, after a hearing conducted on February 26, 2015 this

court issued a twenty-six (26) page memorandum addressing omnibus motions

filed by both Holly Crawford and James Roche.

      This memorandum discusses in detail the reasons for denying defendants

motion to suppress statements. It is appended to this opinion as court, s attachment

1. No further discussion is necessary or required.



                                END OF OPINION



      ORDER ATTACHED AS PAGE 58




                                         57
                                                                                                                              Circulated 11/28/2016 11:10 AM




                               COMIVIONWEALTH OF PENNSYLVANIA                               IN THE COURT OF COMlVION PLEAS

                                                   Vs.                                                    OF LUZERNE COUNTY

                                                                                                             -CRIMINAL-



                                 JAMES EDWARD ROCHE,                                     : NO.      2430 OF 2014

                                 -----------------------------------------------------------------------------------------------------------
                                   COMlVIONWEALTH OF PENNSYLVANIA:                          IN THE COURT OF COMMON PLEAS

                                                  Vs.                                                     OF LUZERNE COUNTY

                                                                                                             ~CRIMINAL-
                                                                                                                          I

                                  HOLLY ANN CRAWFORD,                                    : NO.      243.1    OF 2014r ' ·
                                      . - - . .. ~ ...

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                               :e           [3.3\..ND NOW, this 2Jiday .of March, 2015 upon consideration                             oi both
                                       Defendants Omnibus Pretrial Motions and a Suppression Hearing conducted
                                       on February 26, 2015, IT IS HEREBY ORDERED AND DECREED AS
                                       FOLLOWS:

                                                 1.        Defendant Roche's Motion to Suppress statements is
                                                                                                      .               :       (   .
                                                           DENIED and DISMISSED for the reasons set f.orth· : · · ·

                                                           in the attached memorandum;

              J                                  2.        Defendant Crawford's Motion to Suppress statements

                                                           is DENIED and DISMISSED        for the reasons set forth

                                                           in the attached memorandum .

        ...
( l (\(){1                f 5 J-1-/- lftl A {]1f' JU f-               --fl-/
                             FRl, A.     PIERANTONI,                         J.
                                 i
                                     /
                                                                    r ,
                                                               'I

Copies:
                                                                         "
Mary Phillips, Esquire
District Attorney's Office
Luzerne County Courthouse
200 N. River Street                                                              ,   I


Wilkes-Barre, PA 18711

Jonathan Blum, Esquire
1208 Wyoming Avenue
Forty Fort, PA 18704

Paul Galante, Esquire
39 Public Square
Suite 1000
Wilkes-Barre, PA 18702
                                              '
                                                  : . I.
                                                           .        :1
                                                                    .        '



                                                                        ,,
          COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS

                        Vs.                                           OF LUZERNE COUNTY

                                                                               -CRIMINAL·



         JAMES EDWARD ROCHE,                                : NO.   2430 OF 2014



               COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COl\rlMON PLEAS

                        Vs.                                           OF LUZERNE COUNTY

                                                                               -CRilVIINAL-

          HOLLY ANN CRAWFORD,                               : NO.   2431       OF 2014




                                        PA. R. CRIM. P. 581 (I) MEMORANDUM



j"
                        Although the cases against the defendants in the above captioned matters
                 ~.                                                        .
     -~ ha!}l n9t.~en consolidated for trial, given the commonality of the factual context,
     ~           -·     ::>:z:
     :::>:c a::>
     g na•re ofiffi.e charges and legal issues raised in their respective omnibus motions we
     t.i....     c::)    ,c'(l~J

     ~ wit!ss~&ie                  memorandum with separate findings and conclusions regarding each
     ~
              -w .:
                 Z:
               C".:N
     _.,       ~·=>
     ddel)dant,-.where appropriate.
                 ~

                        On December 2, 2014 counsel for defendant Crawford submitted an omnibus

               pretrial motion which included a motion to suppress statements allegedly made by

               the defendant on April 23, 2014. On February 24, 2015, counsel for defendant

               Roche submitted an omnibus pretrial motion which similarly included a motion to


                                                            1
                                                               --.
 suppress alleged statements made on April 23, 2013. On February 18, 2015 the

 Commonwealth        submitted a brief in opposition to defendant Crawford's motion.    A

 hearing on both motions was scheduled for and conducted on February 26, 2015.


       By way of additional procedural history we observe the Commonwealth filed

an information against defendant Roche on August 15, 2014 setting forth two counts

of criminal     homicide.   The alleged victims are Ronald "Barney" Evans and Jeffrey

Evans. A criminal information was issued on the same date against defendant

Crawford alleging two counts of criminal homicide against the same victims.      These

offenses have as their genesis the alleged shooting of Ronald and Jeffrey Evans on

April 21, 2014 at their residence located at 71 Sunset Lake Road, Hunlock

Township, Luzerne County, Pennsylvania.


       We also note that on February 26, 2015, prior to receiving testimony

concerning the aforementioned statements, this Court disposed of the remaining

issues in both omnibus motions.


       With regard to the change of venue/venire     request, submitted by defendant

Crawford, it was agreed by counsel for the respective parties that the defendant

would submit no evidence in this regard, rather a change of venue or venire would

be considered only if it became evident a jury could not be selected during the voir

dire process.




                                             2
         Both defendants requested individual voir dire. The Trial Judge observed

 that individual voir dire is not required in a case where the Commonwealth     does not

 seek the death penalty.   Voir dire will be conducted in accordance with the

 applicable rules of criminal procedure.   The Court will ·address the prospective

 panel and ask general questions which may be supplemented by counsel. At the

 conclusion of the questioning an individual response or responses may be fully

 explored at side bar.


        The Trial Judge further directed that respective counsel meet and review

 photographs which the Commonwealth seeks to introduce during trial. If an

 agreement cannot be reached regarding the photographs an additional pretrial will

be conducted at which time the court will make a determination after hearing

argument.


        Additionally considered was the Commonwealth's request to introduce

certain convictions of defendant Crawford in the nature of crimen falsi. The

Commonwealth represented the defendant has two qualifying convictions pursuant

to Pa. R.Crim. P. 609, l.e. burglary and robbery. This Court made an initial

determination that the represented convictions would satisfy the aforementioned

rule should the defendant take the stand, however, this determination could be

revisited at trial.




                                           3
                                                               .-...




        The Trial Judge also considered and denied the Commonwealth's request,

 pursuant to Pa.R.E. 404(b), to have the warrant issued for the defendant's failure to

 appear at a D.U.I. sentencing introduced during its case in chief.


                                FACTUAL CONCLUSIONS


 Holly Crawford Statement


        Trooper Stephen Polishan was called by the Commonwealth and stated lie

 has been a member of the Pennsylvania State Police since 1998. Trooper Polishan

 has conducted hundreds of investigations where he has an opportunity to see an

 individual who is under the influence of alcohol or a controlled substance.   Trooper

Polishan is currently assigned to the criminal investigation assessment unit at

Troop "P" Wyoming.

       On April 23, 2014 Trooper Polishan was directed to a wooded area in the

vicinity of rear 71/75 Dobson Road in Hunlock Township.       Trooper Polishan was

advised that two individuals,   armed with rifles, were in the woods and were suspects

in a double homicide.


       The witness stated he arrived in the aforementioned area between 1:00 and

2:00 p.m. on April 23rd. A large law enforcement     contingent was present and

attempting to locate and take Holly Crawford and James Roche into custody.


      Trooper Polishan indicated Holly Crawford was taken into custody, but not

immediately transported to the Shickshinny barracks for questioning because of the
                                           4
                                                           -.
 perimeter which had been set up, the need to summon a transport vehicle and

 secure the presence of a female trooper.


       Trooper Polishan was assigned to conduct an interview of Holly Crawford.

Holly Crawford and James Roche were transported from the scene after which the

witness finished certain assignments and proceeded to the Shickshinny barracks.


       Trooper Polishan interviewed Holly Crawford, who was present in what was

described as an interview room approximately 10 feet by 10 feet containing a table,

chairs, bench, two-way mirror and a door. The defendant was not in handcuffs.

Corporal Stephen Turinski was also assigned to conduct the interview of Holly

Crawford.


       Upon encountering the defendant Trooper Polishan explained who he was

and why he wished to speak with her. Prior to conducting any questioning Trooper

Polishan and Corporal Turinski utilized a "Pennsylvania State Police Rights

Warning and Waiver Form" identified and admitted during the suppression

hearing as Commonwealth's exhibit #1. The form was executed at 6:04 p.m, on

April 23, 2014. The witness stated the defendant was advised of her constitutional

rights by reading the form aloud and asking whether the defendant understood the

rights as read. The defendant stated she understood the rights and further agreed

to speak with the Pennsylvania   State Police. Commonwealth's exhibit #1 contains

the signature of Holly Crawford as well as that of Trooper Polishan and Corporal

Turinski as witnesses.

                                            s
      The witness indicated the defendant asked no questions regarding her rights

or waiver and at no time indicated she did not understand same.


      The Assistant District Attorney asked Trooper Polishan to describe the

defendant's demeanor. Trooper Polishan stated he asked Holly Crawford whether

she ingested any alcohol and her response was not "in two days". The trooper

additionally asked whether the defendant ingested any controlled substance,

specifically heroin, and the defendant replied she had been "clean for two years".


      The witness acknowledged that Holly Crawford appeared physically ill and

that her eyes and nose were red. The defendant stated she was sick and Trooper

Polishan asked "dope sick" to which the defendant responded she had flu like

symptoms.


      Trooper Polishan described defendant's speech as normal and further

indicated she did not appear to be under the influence of alcohol or a controlled

substance.


      During the course of the interview the defendant was afforded the

opportunity to use the bathroom. The witness also stated numerous cigarette

breaks were taken during the interview. Additionally, the defendant was offered

pizza and a soft drink.


      During breaks in the interview process Trooper Polishan and Corporal

Turinski were consulting other investigators regarding information discovered.

                                          6
                          . ...,_,




        Trooper Pollshan described the actual interview portion of his contact with

 Holly Crawford as between one and one half hours.

        Trooper Polishan further stated that Holly Crawford was "cooperative"

 during the course of the interview. Trooper Polishan additionally indicated that J.VIs.

 Crawford was oriented to "date and time". Ms. Crawford's answers to questions

 posed was described as "appropriate".


       The interview consisted of two parts, non recorded and recorded.


       The defendant initially denied knowing either of the two victims.


       The Commonwealth next introduced Commonwealth's exhibit #2 a compact

disc of an audio recording of the statement outlined in a transcript, identified as

Commonwealth's exhibit #3.


       The Commonwealth played the aforementioned interview which began at

10:01 p.m, and concluded at 10:26 p.m, on April 23, 2014. The transcript of the

tape consists of 18 pages. The audio statement contains a preface by Trooper

Polishan which references the aforementioned Pennsylvania State Police Rights

Warning Waiver form previously executed and further represents the defendant's

preference to give a verbal statement of what she represents as "a truthful and

accurate account ofwhat happened". Further, Ms. Crawford acknowledges that the

statement about to be recorded is "voluntary,' and that she was previously advised




                                          7
 of her rights and waived same. Ms. Crawford further acknowledges          her signature

 affixed to the rights and waiver form and that she understood   the form.


       Ms. Crawford spells her first and last name for the investigators     and states

that her date of birth is "11-15-74''.


       The interview proceeds in question and answer fashion. The tone exhibited

by the Pennsylvania State Police is at all times conversational. Ms. Crawford's

answers to the questions posed are responsive and appropriate.


       At approximately eight minutes into the audio taped portion of the interview,

at 10:09 p.m., Ms. Crawford's asks'' ... could we pause for one second". The tape is

then stopped and it is represented that approximately five minutes later the tape is

restarted. At this point Trooper Polishan states the defendant had a question

concerning her medication and indicates that prior to the interview troopers were

dispatched to 71 Dobson Road, in the area where Holly Crawford was taken into

custody, to determine if medication, which may have fell out of her pocket or was

left there inadvertently, could be secured. The medication inquired about is

identified as heart medication and gallbladder medication. The interview then

continues.


      Ms. Crawford outlines the circumstances leading to the shootings. In

describing her position in the residence during the shooting Ms. Crawford states

"yeah that's where I was, Oh, my god I'm getting dizzy", Trooper Polishan asks if


                                          8
                         .   ·.,..,



she wished to take a second and Ms. Crawford responds "no keep going>'.

Questions and answers then continue until the conclusion of the interview. Ms.

Crawford affirmitavly represents that she is being truthful and honest with the

troopers and acknowledges that no threats     01·   promises have been made to her. In

response to a question regarding whether she wants to add or subtract anything

from the statement Ms. Crawford states "No".


         Subsequent to playing the audio Trooper Polishan advised the Court the state

police were not able to secure the medication. Additionally, Trooper Polishan stated

that an ambulance was summoned to the barracks even though the defendant did

not request to be taken to the hospital. The defendant was transported to the

Geisinger Hospital in Plains Township and was released in "less than one hour".

Ms. Crawford was thereafter transported for preliminary arraignment which was

conducted before Magistrate District Judge John Hasay in Shickshinny.


      During cross examination Trooper Polishan indicated there were multiple

troopers and law enforcement vehicles in the area in which the two defendants were

taken into custody. The witness stated bis first observation of Holly Crawford was

when she was in custody. Trooper Polishan stated that although the defendant may

have been handcuffed as she was led into the interview room, she was not in

restraints during the interview.


      Both Trooper Polishan and Corporal Turinski were in plain clothes and

armed.

                                          9
       Although the trooper could not recall the precise time that Ms. Crawford was

 taken into custody he reiterated that the Miranda warnings were administered     at

 6:04 p.m. on April 23, 2014. Trooper Polishan stated he was unaware of any

Miranda warnings administered     to Holly Crawford prior to those described.


       Trooper Polishan stated that the defendant was not left alone during the

interview process.


       The witness acknowledged    that during the process Ms. Crawford appeared to

be tired and possibly ill and that she was at times "laying on the bench".


       Trooper Polishan stated he did not "yell" at Ms. Crawford and further, in his

judgment, Ms. Crawford was oriented to time and date.


       In response to a question by defense counsel whether Trooper Polishan

possessed any information that Ms. Crawford had been "drinking heavily" the

witness responded he thought Ms. Crawford was sober and did not appear to be

undergoing withdrawal.

      During redirect examination Trooper PoJishan stated the defendant was

taken into custody at 3:30 p.m, on April 23, 2014. Trooper Pollshan reiterated that

the Miranda warnings were initially provided pursuant to the rights waiver form

and then referenced again at the beginning of the audio taped interview.


      The Commonwealth offered no other witnesses or evidence.



                                          10
                         _   ....."'\,
                                                             ·-
       Holly Crawford assumed the stand and stated she did not know when she was

 apprehended.   She was sleeping and "picked up by the hair" in a wooded area

 during the afternoon hours. She stated she had been drinking vodka and was

 dragged out of the woods by the state police. She indicated, at one point, she could

not walk and collapsed and two troopers held her by each arm and dragged her.


       Ms. Crawford further testified that she has a heart condition and prescribed

medication for resulting seizures. She further related she has a vest with a device

that can be employed if her heart stops.


       This witness further indicated she was "very drunk" on the day she was

apprehended and was "scared" for her health. Ms. Crawford stated she was "laying

down" at times while at the Pennsylvania State Police barracks and further she was

questioned for a "long period of time";


      With regard to the audio statement provided Ms. Crawford indicated the

answers were provided by the state police and then recorded.

      Concerning the waiver of her constitutional rights, Ms, Crawford indicated it

is "something she heard before" although she was not sure she understood. She

described herself as "disconnected" and not clear headed. Ms. Crawford indicated

she was "drunk" and that the alcohol was topped with Klonopin.


      On cross examination she professed a lack of memory concerning aspects of

the interview. The witness further stated she did not recall if she mentioned the

                                           11
                                                             ;.~,




 ingestion of Klonopin to the troopers. Ms, Crawford further stated she did not tell

 the troopers about the vest with the device to assist her heart. The witness testified

she had a "scared feeling" that her heart would stop.


       Upon further cross examination the witness acknowledged she was advised of

her Miranda warnings on the day in question and further she was familiar with the

criminal justice system as a result of numerous arrests in the past.

       To the extent necessary for our present determination we resolve the issue of

credibility in favor of Trooper Polishan and against Ms. Crawford.


James Roche Statement

       Corporal Christopher King initially indicated he has been employed by the

Pennsylvania State Police for sixteen years. Corporal King stated, in the course of

his career, he has observed people under the influence of alcohol and or controlled

substances on numerous occasions.

       On April 23, 2014 Corporal King was at the Pennsylvania State Police

barracks in Shickshinny and assigned to interview, along with Trooper Robert

Franchella, James Roche. Corporal King initially encountered Mr. Roche between

4:00 and 5:00 p.m, Defendant Roche was placed in a conference room containing a

large table. Mr. Roche was not restrained during the course of the interview.


      Corporal King initially advised Mr. Roche that the Pennsylvania State Police

were conducting a death investigation regarding Ronald and Jeffrey Evans.
                                           12
         At 5:56 p.m, on April 23, 2014 Corporal King, utilizing a "Pennsylvania State

  Police Rights Warning and Waiver Form", identified and introduced as

  Commonwealth's exhibit #1, advised the defendant of his Miranda warnings. The

 defendant thereafter signed the form acknowledging his constitutional warnings and

 agreed to speak with the investigators. Corporal King indicated the defendant had

 no questions regarding the rights and waiver form and at no time indicated a lack of

 understanding regarding his lVliranda rights.


        Corporal King described the defendant's demeanor as calm and cooperative.

 Mr. Roche advised Corporal King that he had been drinking vodka on the day the

 statement was given. Corporal King asked Mr. Roche if he had ingested any

 controlled substances and the defendant responded he had not.


        Corporal King described the defendants speech as normal and further that

his eyes appeared slightly bloodshot, but the defendant did not appear ill. Corporal

King further testified that Mr. Roche did not appear to be under the influence of

alcohol or a controlled substance.


       Corporal King further advised the court that during the course of the

interview Mr. Roche was provided bathroom breaks and had an opportunity to eat

pizza and drink soda.


       Corporal King reiterated that Mr, Roche displayed no outward signs of

intoxication.


                                         13
                                                             .·-...,




       The witness advised the court that the interview with Mr. Roche lasted

approximately two to two and a half hours, which includes the audio portion of the

statement. Corporal King further stated the defendant was oriented to both time

and date.


       The Commonwealth next identified and introduced, Commonwealth's exhibit

#2, a disc containing the audio portion of the aforementioned interview. The Court

was also provided a transcript of the interview which consists of 64 pages.


      The audio portion of the interview begins at 8:04 p.m, and concludes at 10:04

p.m. on April 23, 2014.

      At the inception of the audio interview Mr. Roche acknowledges both his

consent to the recording and the reading of bis Miranda warnings. The warnings

are then reiterated by Corporal King with the defendant acknowledging an

understanding of each separate representation.


      The interview was conducted in conversational tone and the defendant's

answers to questions posed are responsive and appropriate.


      During the course of the interview the defendant acknowledges going to the

residence with the express purpose of assaulting Ronald "Barney" Evans and,

thereafter, as events unfolded he shot Ronald and Jeffrey Evans.




                                         14
       Subsequent to the conclusion of the audio statement Corporal        King advised

 the Court that Mr. Roche was transported       for the purpose of preliminary

 arraignment before Magisterlal   District Judge Hasay.


       During cross examination   Corporal King indicat.ed his first contact with the

 defendant was at approximately   5:50 p.m .. Corporal King indicated the only people

in the interview room were himself, Trooper Franchella       and the defendant.


       Corporal King acknowledged       that the defendant had bloodshot eyes,

however, he was not slurring his words nor did he appear to be under the influence

of alcohol. When asked whether the defendant exhibited au odor of alcohol, the

witness responded the defendant exhibited several odors, one of which was

described as a minor odor of alcohol.


       Upon further cross examination     Corporal King stated that during the process

of the interview he was being advised of information     learned by other investigators.

      Corporal King was never at the wooded area or campsite where James Roche

and Holly Crawford were discovered.


      Corporal King further stated that the non recorded portion of the interview

began at approximately 5:55 p.m. and one and one half hours later the taped

portion of the interview began.




                                           15
       Corporal King further indicated that during the break in the audio portion of

the statement he advised Mr. Roche he did not believe Mr. Roche's representations

that Holly Crawford was not present at the scene of the' shootings.


       In response to further questions, Corporal King stated he did not lie to the

defendant nor did be provide the defendant with "exaggerated facts".


       The witness reiterated that be had an opportunity to observe the defendant

walking and described his gait as normal. Corporal King reiterated that Mr. Roche

did not appear drunk or under the influence of alcohol. Rather, Corporal King

stated the defendant appeared normal.

       Mr. Roche assumed the stand and initially testified he remembers only "bits

and pieces" of the day he was taken into custody. Mr. Roche stated that on that day

he purchased a half gallon of vodka at the liquor store at 11:00 a.m. He further

indicated the day before he was taken into custody be consumed a fifth or more of

vodka. Mr. Roche testified he drank virtually every day.


      Mr. Roche stated he recalled speaking to the Pennsylvania State Police but

that parts of the rights waiver discussion were "foggy". Mr. Roche testified he

wished to speak to the police but "didn't put much thought into it".


      The defendant stated that prior to being taken into custody he was "drunk"

and took a handful of Ms. Crawford's heart medication when lie saw the state police

helicopter overhead.

                                          16
             On cross examination he testified he consumed a.handful of the pills upon

    seeing the Pennsylvania State Police helicopter because he felt terrible and "wanted

    to die".


             Mr. Roche acknowledged taking a break during the course of the interview.


            To the extent necessary for our present termination we resolve the issue of

    credibility in favor of Corporal King and against Mr. Roche.


                                     ANALYLITICAL FRAMEWORK


            Subsequent to the filing of a motion to suppress evidence, the Commonwealth

    bears the burden of going forward at a subsequent hearing establishing that the

    challenged evidence was not obtained in violation of a defendant's rights. Pa. R.

    Crim. P. 581(H); Commonwealth v. Dixon, 997 A.2d 368 (Pa. Super. 2010).


            Statements stemming from a custodial interrogation or interview may not be

    used unless a defendant was apprised of his or her right against self incrimination

and right to counsel embodied in Miranda. 1 It is also imperative that a defendant

waive these constitutional rights. This waiver must be the result of a free and

deliberate choice rather than intimidation, coercion, or deception, and the choice

must be made with a full awareness both of the nature of the right being abandoned

and the consequences of the decision to abandon it. Commonwealth v. Watkins, 843

A.2d 1203, 1213 (Pa. 2003), cert. denied 125 SC 450. While Fifth Amendment

1
    Miranda v. Arizona, 86 s.ct. 1602 {1966).


                                                17
     jurisprudence does not require an explicit waiver of Miranda rights,                    Pennsylvania

     has developed what is described as a "nuanced approach" which requires the

     defendant express a manifestation of his or her desire to waive Miranda.

     Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011).


              Recently, in Commonwealth v. Bryant, Justice lVIcCaffery, author of the

    opinion, instructs that the test for determining the voluntariness, and thus the

    admissibility, of an accused's statement is the totality of the circumstances

    surrounding the statement. Commonwealth v. Bryant, 67 A.3d 716) 724, 725 (Pa.

    2013).2


            Bryant further informs the mere fact that there is some passage of time

    between when an accused is arrested and when he or she gives an inculpatory

    statement does not constitute grounds for suppression. The opinion thereafter sets

    forth numerous factors which Pennsylvania jurisprudence considers under a totality

    of the circumstances test to determine whether a statement was freely and

voluntarily made. They are:


                   -The duration and means of interrogation, including whether
                   questioning was repeated, prolonged, or accompanied by physical
                   abuse or threats thereof;
                   -The length of the accused's detention prior to the confession ;-Whether
                   the accused was advised of his or her constitutional rights;

2
    Bryant, references Commonwealth v. Perez, 845 A.2d 779, 787 (Pa. 2004), an opinion in which the Supreme
Court discarded application of the so-called "six-hour rule" established by Commonwealth v. Davenport, 370 A.2d
301 (Pa. 1977) and Commonwealth v. Ducan, 525 A.2d 1177 (Pa. 1987).


                                                        18   .
              -The attitude exhibited by the police during the interrogation;
              -The accused's physical and psychological state, including whether he
              or she was injured, ill, drugged, or intoxicated;

              -The conditions attendant to detention, including whether the accused
              was deprived of food, drink, sleep, or medical attention;

              -The age, education and intelligence of the. accused;
              -The experience of the accused with law enforcement in the criminal
              justice system;

              -Any other factors which might serve to drain one's powers of
              resistance to suggestion and coercion;



       Additionally, when considering alleged impairment our appellate courts have

repeatedly observed the fact that an accused has been drinking does not

automatically invalidate his or her subsequent incriminating statements. Rather,

the test is whether he or she had sufficient mental capacity at the time of giving the

statement to know what he or she was saying and to have voluntarily intended to say

it. Recent imbibing or the existence of a hangover does not make a confession

inadmissible, but goes to the weight to be accorded to it. When evidence of

impairment is present, it is for the suppression court to decide whether the

Commonwealth has established by a preponderance of the evidence that the suspect

nonetheless had sufficient cognitive awareness to understand the Miranda warnings

and to choose to waive these rights. Commonwealth v. Ventura, 975 A. 2d 1128,

1138 (Pa. Super. 2009).




                                          19
                          .......
                                    '·

        In Ventura a law enforcement officer testified he did not observe indications

 the defendant was inebriated when he first arrived on the scene, although he smelled

 the odor of alcohol and it was apparent the defendant had been drinking. The

 officer further testified the defendant did not slur his speech, stagger, stumble or

 display other types of behavior which would permit the conclusion he was

 intoxicated.


       There, Superior Court affirmed the trial court's determination that

Mr.Ventura knowingly waived his Miranda rights, concluding that defendant had

sufficient mental capacity at the time of giving his statement to know what he was

saying. The suppression testimony revealed that Ventura was cognizant of time and

place and had no difficulty walking, did not slur his speech and demonstrated he

was capable of making decisions when he chose not to answer certain questions

because he feared incrimination.


       Furthermore, as observed by the Pennsylvania Supreme Court in

Commonwea]th v. Phillistin, 53 A.3d l(Pa. 2012), a determination of whether a

statement or confession is involuntary focuses not upon whether a suspect or

defendant would have given a statement or confessed without the interrogation, but

whether the questioning or interrogation was so manipulative or coercive that it

deprived the defendant of bis or her ability to make a free and unconstrained

decision to provide a statement or confess.




                                          20
                          --   -,




                                    LEGAL CONCLUSIONS


        Turning to the instant matter we initially observe it is undisputed that both

 Holly Crawford and James Roche were in custody, as that term is understood in

 Pennsylvania jurisprudence, when the statements at issue were provided.


 Holly Crawford


       The suppression record establishes that Holly Crawford was taken into

 custody by the Pennsylvania State Police at approximately 3:30 p.m, on April 23t

 2014. The record contains no testimony from the members of the state police who

actually located or took Ms. Crawford into custody. Ms. Crawford was transported

to the Pennsylvania State Police Barracks in Shickshinny and questioned by

Trooper Polishan and Corporal Turinski.


       At 6:04 p.m., prior to any questioning, Ms. Crawford was advised of her

Miranda warnings utilizing the "Rights Warnings and Waiver Form" described

above. The testimony establishes Ms. Crawford was advised of each of her

constitutional warnings, understood them and agreed to speak to the troopers. This

conclusion is warranted based upon the testimony of Trooper Polishan, our review

of the Rights and Waiver Form and defendant's affixed signature acknowledging

she was advised of her Miranda warnings understood them and further agreed to

speak with law enforcement. It is additionally buttressed by the audio tape




                                          21
                       .   -...

 referencing the administration of Miranda warnings and the defendant's

 understanding of same.


       We will next review the factors articulated in Bryant to determine if the

statement was voluntary.


       Ms. Crawford's interrogation began at 6:04 p.m. and concluded at 10:26

p.m .. The duration of the interrogation was therefore 4 hours and 22 minutes. In

this regard we have further examined whether the questioning was repeated. Ms.

Crawford was initially questioned concerning the circumstances of her involvement

in this matter and next agreed to an audio taped statement. The questions were

therefore repeated once. We cannot conclude the questioning was prolonged, based

upon it's previously described length, given the numerous breaks requested and

afforded Ms. Crawford for cigarette smoking, eating, and drinking. Furthermore,

the record is absolutely devoid of any evidence that Ms. Crawford was physically

abused or the subject of threats by law enforcement.

      Ms. Crawford was in custody for approximately two and a half hours prior to

the statements.


      Ms. Crawford was advised of her constitutional warnings prior to law

enforcement engaging in any interrogation.


      The attitude exhibited by the Pennsylvania State.Police during the

questioning was conversational in tone, respectful and accommodating.

                                         22
         Ms.Crawford advised the troopers she was and appeared to be physically        ill,

 although she denied being under the influence of alcohol or controlled substances.


        There is nothing about the conditions attendant to the detention which

 suggest involuntariness, given that Ms, Crawford was provided numerous breaks,

 pizza and a soft drink. Moreover, when she requested that the state police attempt

 to find what was described as heart medication they obliged, albeit unsuccessfully.


       Ms. Crawford's age in no way suggests the statement was involuntary.

Indeed, the record establishes Ms. Crawford was familiar with law enforcement and

the criminal justice system, having been arrested on previous occasions.


        Ms. Crawford advised Trooper Polishan that she had not consumed alcohol

in two days nor a controlled substance in two years. Furthermore, Ms. Crawford

denied being "dope sick" and attributed her feeling ill to flu like symptoms.


       Having credited Trooper Polish an 's testimony we accept his observations that

Ms. Crawford's speech was normal and that she did not appear to be under the

influence of alcohol or a controlled substance.


       Additionally, we had the opportunity to actually hear Ms. Crawford's voice

during the audio portion of the interview and discerned nothing in her tone or

responses which suggests she lacked an understanding of the questions posed or that

the questioning was so manipulative or coercive that it deprived her of an ability to

make a free and unconstrained determination to provide a statement.

                                           23
                                                              -.
        Additionally, although not requested by Ms. Crawford, it was decided to

 nevertheless summon an ambulance after which she was transported to the

 Geisinger facility in Plains Township and released within one hour. The record is

 devoid of any evidence or testimony concerning what, if any, medical treatment Ms.

 Crawford received or what if any conclusions were reached by medical personnel.


       The record does not establish at what time Ms. Crawford's preliminary

 arraignment occurred.


       Applying the totality of the circumstances test we conclude, in balance, that

 the statement provided was voluntary.


 James Edward Roche


       Employing the criteria set forth in the analytical framework section of this

memorandum and referenced and considered in the context of Ms. Crawford's

statement we conclude, without hesitation, that Mr. Roche was advised of his

Miranda warnings and agreed to be interviewed.


      The Pennsylvania State Police Rights, Warning and Waiver Form introduced

as Commonwealth's exhibit #1 and signed by Mr. Roche establishes, within the

context of Corporal King's testimony, that the defendant was fully aware of his

constitutional rights and agreed to waive same. Mr. Roche's awareness and

understanding of the rights outlined in the aforementioned exhibit is reiterated and



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 reinforced at the inception of the audio taped statement of 8:04 p.m., which has been

 referenced in the factual findings.


        Additionally,   we have examined the totality of the circumstances employing

 the criteria previously described.


       The Pennsylvania      State Police began questioning Mr, Roche at 5:56 p.m, on

 April 23, 2014. The questioning concluded at 10:30 p.m. The length of the

 questioning is therefore four hours and forty minutes.


       The questioning was repeated in the same sense as was Ms. Crawford's.       Mr.

Roche initially spoke with law enforcement       and then agreed to provide an audio

taped statement. We cannot conclude that the statement was unduly prolonged,

given the breaks afforded during the questioning.


       The record is absolutely devoid of any physical abuse or threats directed at

Mr. Roche.

      The record does not establish the time Mr. Roche was taken into custody and

therefore we cannot consider the length of the accused detention prior to the

confession. Furthermore, the record does not establish the time of the defendant's

preliminary arraignment.


      As previously indicated Mr. Roche was advised of his constitutional rights.




                                           2.5
                         _   .   ........,,._                 .. ......,   _




       The attitude exhibited by the Pennsylvania State Police during the

interrogation was conversational and at all times appropriate.


       There is nothing in the record regarding the accused physical or

psychological state which permits or suggests the conclusion that the statement was

involuntary. Indeed, the testimony and audio taped statement establish the

opposite, that is, that Mr. Roche was calm, cooperative .and responsive.


       While Corporal King acknowledged that the defendant's eyes were slightly

bloodshot, the testimony establishes that be was not under the influence of alcohol

01· controlled   substances and that he was afforded a bathroom break and ate pizza

and drank soda. Furthermore, the record establishes Mr. Roche displayed no

outward signs of intoxication.


       There is nothing in the record regarding the education or intelligence of the

accused which would suggest he was incapable of making a voluntary statement.

Indeed, bis tone, demeanor and choice of language during the interview suggest the

conclusion of voluntariness.


      Examining the totality of the circumstances, we conclude the Commonwealth

has sufficiently established Mr. Roche's statement was voluntary.




                                          END OF MEMORANDUM



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