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J. S72026/16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : HOLLY ANN CRAWFORD, : : Appellant :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 r- C:'c:> ~ ~ ~; r-,. -~ \ ':;ti r--·r?, r,:l:::::;: ~.,..., ~ OPINION ~·.::f.. I 0 -n ~... z -- rn;r 0 PROCEDURAL HISTORY nr ~ St -x: .e: ~.~ --:: c: ?O ~ 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 ' · . - - . .. ~ ... CJ') - ~ ~ 0: •• >- ;::,.: ,__ . :::::, 0 :I: _:;e I (.,) L.. 111:r a-g -ses ORDER Q C) < =z: L.l..J ~ !le: "' a:: -.:z: ?;t5 ~. . . ; . ~ -.J (...> - l.r.t :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 24 .-. .. 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 26