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HomeMy WebLinkAbout99-0736 criminalCOMMONWEALTH VS. BRIAN KEITH HARMAN · NO. 99-0736 CRIMINAL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE' DEFENDANT'S OMNIBUS PRETRIAL MOTION TO SUPPRESS BEFORE GUIDO. J. AND NOW, this ORDER OF COURT day of SEPTEMBER, 1999, the Defendant's request to suppress the statement he made to the state police at the Cumberland County Prison on April 5, 1999, is GRANTED. The remaining requests for relief contained in his Omnibus Pretrial Motion and Supplemental Omnibus Pretrial Motions are DENIED. By the Edward E. Guido, J. William I. Gabig, Esquire For the Commonwealth Samuel W. Milkes, Esquire For the Defendant 'sld · o COMMONWEALTH go BRIAN KEITH HARMAN ' IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : · NO. 99-0736 CRIMINAL TERM · o IN RE' DEFENDANT'S OMNIBUS PRETRIAL MOTION TO SUPPRESS BEFO.RE GUIDO. J. OPINION AND ORDER OF COURT On May 28, 1999 the Defendant filed an Omnibus Pretrial Motion in which he requested that we suppress certain statements. On June 17, 1999 he filed a supplemental Omnibus Pretrial Motion in the nature of a Motion for Habeas Corpus requesting that we dismiss five (5) of the six (6) robbery counts against him. An evidentiary heating was held in connection with both motions on June 29, 1999.l At the conclusion of the heating Defendant's counsel indicated that there may be additional motions forthcoming as a result of recently completed discovery. A second supplemental Omnibus Pretrial Motion was filed on July 6, 1999. In that motion the Defendant sought to suppress a video and audio tape from the Cumberland County Booking Center. He also requested the consolidation of various robbery charges stemming from incidents in both Cumberland and Dauphin Counties. An evidentiary hearing was held in connection with the second supplemental motion on August 17, 1999. I By order dated July 2, 1999 we denied Defendant's Motion for Habeas Corpus. 99-0736 CRIMINAL The parties were given the opportunity to submit briefs in support of their respective positions. This matter is now ready for disposition. FINDINGS OF FACT On March 23, 1999, an armed robbery occurred at the Kam's Market in South Middleton Township, Cumberland County. Trooper Steven Strawser and his partner were assigned to investigate the robbery. During the course of their investigation, the Defendant became a suspect. On April 1, 1999, at approximately 5:00 p.m. Trooper Strawser and his partner saw the Defendant sitting in his parked vehicle on Filbert Lane in Mechanicsburg. Trooper Strawser approached the vehicle, identified himself, and advised the Defendant that they were investigating the robbery in question. The Trooper asked the Defendant to voluntarily accompany him to the State Police Barracks in Carlisle to discuss the robbery. The Defendant refused to go to Carlisle. However, he did indicate that he was willing to discuss the matter. The Trooper suggested that they go to the nearby Mechanicsburg Police Department and the Defendant agreed. The Trooper made it very clear to the Defendant that he would not be in custody and that he could leave at any time. The Trooper drove the Defendant the few blocks to the Mechanicsburg Police Station. When they arrived at the station, the Defendant asked to use the bathroom. The Trooper asked if it would be okay to pat him down. The Defendant took offense and indicated that he no longer wanted to talk. At that time the Defendant said "I should call my attorney." When the Trooper offered the use of a phone to call his attorney, the Defendant responded "No, I'll do it on my own 2 99-0736 CRIMINAL if I want." The Defendant then left the station. The Trooper followed him outside and asked if he would reconsider voluntarily cooperating. The Trooper asked the Defendant to come back into the police station. The Defendant refused, but he agreed to talk to the Trooper outside the station. The Trooper again made it clear to the Defendant that he was not under arrest and could leave at any time. There were several troopers present outside the station that engaged the Defendant in conversation. During the course of the interrogation the Defendant made numerous statements that the Commonwealth desires to use at trial. After a short time the Defendant indicated that he no longer wished to answer questions and he voluntarily walked away. After the interview with the Defendant, Trooper Strawser contacted the District Attorney's Office to review the evidence in order to determine if it was sufficient to file charges2 The District Attorney indicated that it was. The Trooper filed charges and obtained a warrant for the Defendant's arrest. The Defendant was arrested in the early morning hours of April 2, 1999 and placed in Cumberland County Prison in lieu of bail. On April 5, 1999 Trooper Strawser went to the prison to serve a search warrant on the Defendant. While at the prison, the Trooper asked the Defendant if he wanted to reconsider and voluntarily cooperate with the police. He said he did not. The Trooper then told the Defendant that he thought the co-defendant wielded the gun, not the Defendant. The Defendant responded 2 Interestingly, the Trooper did not advise the District Attorney of the substance of any statements made by the Defendant. 3 99-0736 CRIMINAL that he did not even know the co-defendant.3 He declined to cooperate any further. At no time did the Trooper advise the Defendant of his Miranda warnings. While at the prison the Trooper discovered that another inmate had an item of Defendant's clothing which was listed in the search warrant. During the course of his conversation with the inmate, the Trooper discovered that the Defendant had made several incriminating statements to that inmate. On June 21, 1999, the Defendant was taken from the Cumberland County Prison to the Cumberland County Booking Center where he was charged in connection with another robbery. The additional charges arose out of the armed robbery of a Carlisle business that occurred on February 18, 1999. The Cumberland County Central Booking Center occupies 900 square feet of space inside the Lower Allen Township Police Station. The booking center has four (4) cameras with audio capabilities. The video capabilities cannot be separated from the audio capabilities. In other words, when the video camera is running, it is also recording sound. There are at least nine (9) signs scattered throughout the small facility which prominently display the warning that video and audio recordings are being made at all times. The Defendant can read and write the English language. He could not help but see the signs. The booking center includes two small holding cells. The Defendant was handcuffed in a 3The Commonwealth is prepared to show that this statement was not tree. 99-0736 CI:~IM~AL hallway approximately ten (10) feet from those cells. He was handcuffed with a suspect in an unrelated charge. His co-defendant in the Kam's robbery was being held in one of the holding cells with another suspect on an unrelated charge. One of the video cameras was recording all happenings in the holding cell. The video camera was clearly visible to the Defendant from his position in the hallway as were at least two (2) of the warning signs. Despite the presence of the video camera, and two (2) suspects in unrelated charges, this Defendant made certain incriminating statements to his co-defendant which were picked up by the audio portion of the camera trained on the holding cells. In addition, one of the booking center employees could clearly hear the conversation taking place between the Defendant and his co-defendant. Although she was not paying attention to what was being said, if she had been, she could have clearly heard every word. CONCLUSIONS OF LAW 1. The Defendant was not in custody at any time on April 1, 1999. 2. The Defendant did not clearly and unequivocally invoke his fight to counsel on April 1, 1999. 3. The statement made by the Defendant to Trooper Strawser at the prison on April 5, 1999, was the result of a custodial interrogation obtained without the necessary waiver of Miranda fights. 4. The inmate to whom the Defendant made incriminating statements was not involved in any law enforcement activities nor working in concert with the police at the time that such statements were made to him. 99-0736 CRIMINAL 5. The Defendant had no justifiable expectation that his conversation with his co- defendant at the booking center would not be recorded. 6. The statements made by the Defendant at the booking center were made voluntarily and were not in response to police questioning. 7. The various armed robberies with which Defendant is charged are not part of the same criminal episode. DISCUSSION The Defendant requests that we suppress the statements made by him in and around the Mechanicsburg Police Station on April 1, 1999. He further requests that we preclude the Commonwealth from using all statements obtained at the Cumberland County Prison, including one that he allegedly made to another inmate. He also asks us to suppress the video and audio tape recordings made at the booking center on June 21, 1999. Finally he asks that the robbery charges be consolidated for trial with other robbery charges pending in both Cumberland and Dauphin Counties. We will discuss each request separately. April 1, 1999 statements made at the Mechanicsburg Police Station. It is elementary that no custodial interrogation may take place unless the suspect has knowingly, intelligently and voluntarily waived his constitutional rights against self incrimination and to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Furthermore, once a suspect has asserted his fight to counsel, the police must stop the interrogation and may not reinstitute it at their instance. Edwards v. Arizona, 451 U.S. 477, 99-0736 CRIMINAL 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). However, the request for counsel must be clear, precise and unequivocal before the Edwards protection is applicable. Com. v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986). In the instant case, there is no question that the Defendant was never in custody on April, 1, 1999.4 He was clearly advised on numerous occasions that he was free to leave at any time. In fact, he eventually walked away from the interrogation before the police were finished. Therefore, there was no need for the police to advise him of his Miranda fights. ~ee Com. v. Gwynn., 555 Pa. 86, 723 A.2d 143 (1998). The Defendant argues that his assertion of his right to counsel in the police station precluded the police from questioning him further under Edwards v. Arizona, supra. However, the Edwards case deals with a request for counsel made in a custodial situation. The Defendant has not cited any cases, nor were we able to find any, that deal with police initiated questioning after a request for counsel is made in a non-custodial situation. Even assuming arguendo that the Edward~. prohibitions are applicable in non-custodial situations, they would not be applicable to the case at bar. Pursuant to Edwards, a Defendant's request for counsel must be clear and unequivocal. As our Supreme Court has succinctly stated: To hold that every utterance of the word "lawyer" automatically erects the Edwards "cone of silence" around the accused, thus insulating him from all further police initiated questioning and communication, would be far too rigid and would not serve the interests or needs of justice. 4 A person is deemed to be in custody "if he is placed in a situation in which he reasonably believes that his freedom of action is restricted by the interrogation." Com. v. Zogby, 455 Pa. Super. 621,689 A.2d 280 (1997). 7 99-0736 CRIMINAL Com. v. Hubble, 509 Pa. 497, 511,504 A.2d 168, 175 (1986). In the instant case the Defendant's assertion of his fight to counsel was neither clear nor unequivocal. In the Hubble case the Defendant requested a lawyer and the police gave him the opportunity to call one, which he declined to do. The Pennsylvania Supreme Court held that the prophylactic role of Edwards did not apply because Defendant's actions made it clear that his assertion of his fight to counsel was equivocal. In upholding the trial court's refusal to suppress the statements given by defendant, the court noted that the conduct of the police "following appellee's equivocal requests demonstrates a good faith, reasonable effort to comply with appellee's desires and to honor his right to counsel.''5 Hubble, 509 Pa. at 511,504 A.2d at 175. In the instant case the Defendant's request for counsel was even more equivocal than was Mr. Hubble's request. Mr. Hubble's exact words were "I want a lawyer. I want a public defender.''6 This Defendant said "I should call my attorney" (emphasis added). As in Hubble the police used every reasonable effort to honor his fight to counsel. They offered him the use of a phone which he declined stating "I'11 do it on my own if I want." (emphasis added). This was not the type of clear, precise and unequivocal request for counsel necessary to invoke the prophylactic role enunciated in Edwards. Therefore, we must deny the Defendant's request to suppress the statements he made on April 1, 1999. 5 Contrast Com. v. Zook 520 Pa. 210, 553 A.2d 920 (1989) in which the Court suppressed the statement where the police did not give the defendant the opportunity to call an attorney. 6 504 A.2d 168, 173. 8 99-0736 CRIMINAL Statements made at the County Prison. The statement made to Trooper Strawser at the Cumberland County Prison on April 5, 1999 is another matter entirely. The Commonwealth argues that it was not the result of a custodial interrogation and is, therefore, admissible at trial. It concedes, as it'must, that the Defendant was in custody when he met with the Trooper at the prison. It further concedes that no Miranda warnings were given before the Defendant denied even knowing the co-defendant. However, the Commonwealth argues that the statement was not made in response to an interrogation or police questioning. We disagree. The Pennsylvania Supreme Court has consistently held that the term "interrogation" encompasses not only direct questioning, but also "any words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating statement." Com. v. Hughes, 536 Pa. 355,371,639 A.2d 763,771 (1994). See also Com. v. Gwynn, supra. We conclude that Trooper Strawser's actions at the prison were specifically designed to elicit incriminating statements from the Defendant. He met with the Defendant for the express purpose of getting him to give a statement. When the Defendant refused to cooperate, the Trooper stated something to the effect that "we believe the co-defendant, not you, had the gun." This statement was clearly not made for the purpose of providing information to the Defendant. It was designed to elicit a response.7 Under the circumstances, the Trooper should have known that any response was reasonably likely to be incriminating. Therefore, the Defendant should 7 The Trooper admitted that he made the statement hoping that the Defendant would change his mind about cooperating. 9 99-0736 CRIMINAL have been advised of the Miranda. warnings. Since he was not, his response must be suppressed. The Defendant also seeks to suppress the statement he allegedly gave to another inmate at the prison. A statement made by a defendant to another inmate must be suppressed if the fellow inmate was acting as an agent for the Commonwealth in obtaining the incriminating information. Com. v. Franciscus, 551 Pa. 376, 710 A.2d 1112 (1998). However, we are satisfied that there was no connection whatsoever between the Commonwealth and this Defendant's fellow inmate at the time the incriminating statement was made. Trooper Strawser happened upon the fellow inmate by accident. He became aware of the incriminating statements made by the Defendant only after they had been made. Since there is no logical way that the other inmate could have been working on behalf of the Commonwealth at the time the Defendant incriminated himself, the evidence cannot be suppressed. Statements made at the booking center. Defendant has asked us to suppress the audio portion of the video tape made at the booking center in June. However, he has cited no authority to support the proposition that the tape should be suppressed. In fact, the only authority we have found is directly contrary to the Defendant's position. There were numerous signs throughout the booking center warning that video and audio recording was taking place at all times. We find as a fact that the Defendant must have seen the warnings. We chose not to believe his testimony that he did not. Therefore, there was no 10 99-0736 CRIM~AL violation of the Wiretapping and Electronic Surveillance Control Act.s Furthermore, since the recorded statements allegedly made b~ the Defendant were made voluntarily and were not in response to police questioning, they 'should not be'suppressed. See Com. v. Blair, 394 Pa. Super. 207, 575 A.2d 593 (1990) and Com. v. Rishel, 399 Pa. Super. 413,582 A.2d 662 (1990), which upheld the lower courts' refusal to suppress the audio portion of videotapes made under similar circumstances. Consolidating the Dauphin and Cumberland County charges. Finally, the Defendant argues that all of the robbery charges pending in Cumberland and Dauphin County are part of the same criminal episode. Therefore, they should be consolidated for trial pursuant to Section 110 of the Pennsylvania Crimes Code.9 He cites Com. v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997), in support of his position. The McPhail Court held that all charges arising as part of a single criminal episode must be tried together, even if they occurred in different counties.' It reasoned that the Court of Common Pleas of each county has jurisdiction of all charges. The question of where the trial occurs is a matter of venue not jurisdiction. 8 18 Pa.C.S.A. § 5701 et seq., See specifically 18 Pa.C.S.A. § 5725(a). See also Agnew v. Dupler, 553 Pa. 33,717 A.2d 519 (1998), holding that there is no violation of the act'unless there is an expectation that the communication would not be intercepted and the expectation was justifiable under the circumstances. 9 18 Pa.C.S.A. § 110. That section provides in relevant part: Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for: (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense. 11 99-0736 CRIMINAL However, in the instant case, the various robberies cannot be classified as part of one criminal episode. In Com. v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), the Pennsylvania Supreme Court set forth the standard to apply in determining when multiple offenses are part of the same criminal episode. Hude requires us to conSider tWo factors' (1) the logical relationship between the acts and (2) the temporal relationship between the acts. 458 A.2d at 183. In Com. v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995), the Supreme Court discussed at length how to apply that standard. The various armed robberies with which this Defendant is charged involved different victims, different witnesses, and were the subject of totally unrelated criminal investigations. Applying the Hude standard we are satisfied that none of the armed robberies is logically related to another. Rather, they are all separate and distinct criminal episodes for which separate trials are appropriate. Based upon the foregoing discussion we will enter the following order. AND NOW, this ORDER OF COURT day of SEPTEMBER, 1999, the Defendant's request to suppress the statement he made to the state police at the Cumberland County Prison on April 5, 1999, is GRANTED. The remaining requests for relief contained in his Omnibus Pretrial Motion and Supplemental Omnibus Pretrial Motions are DENIED. William I. Gabig, Esquire For the Commonwealth By the Court, Samuel W. Milkes, Esquire For the Defendant /s/Edward E, Guido Edward E. Guido, J. 12 COMMONWEALTH Vo BRIAN KEITH HARMAN · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA o .. · NO. 99-0736 CRIMINAL TERM IN RE: OPINION PURSUANT TO APPELLATE RULE 1925 Guido, J., November 29, 1999 The Defendant was convicted by a jury of six counts of robbery and one count of theft. On October 19, 1999, we sentenced the Defendant on each count of robbery to a period of incarceration in a state correctional institution for not less than seven (7) nor more then twenty (20) years. The sentences were made to run concurrent to each other. The sentence on the theft charge was two (2) to seven (7) years concurrent to the robbery .:; counts. The Defendant filed this timely appeal. According to the Concise Statement of Matters Complained of on Appeal, the Defendant alleges that we erred in failing to grant his various pretrial motions. Our reasons for refusing to grant those motions are thoroughly discussed in our Order of July 2, 1999, and our Opinion and Order of September 14, 1999. November ~, ~; , 1999 District Attorney Samuel W. Milkes, Esquire For the Defendant Edward E. Guido, J.