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HomeMy WebLinkAbout00-1592 CriminalCOMMONWEALTH OF PENNSYLVANIA V. MATTHEW TIMOTHY NORRIS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-1592 CRIMINAL Guido, J., IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 2002 After a trial by jury, the defendant and a codefendant were convicted of first degree murder and various other charges in connection with the killing of Sydney Bull, a fellow student at Shippensburg University. On June 19, 2001, the defendant was sentenced to a mandatory term of life imprisonment.~ He filed several post sentence motions which were denied. This timely appeal followed. In his concise statement of matters complained of on appeal, defendant raises the following issues: (1 .) His motion for judgment of acquittal should have been granted. (2.) His motion for a new trial should have been granted. (3.) We erred in failing to instruct the jury to disregard eyewitness testimony which was recanted during cross examination. (4.) We erred in failing to exclude certain expert testimony proffered by the Commonwealth. ~ He received concurrent sentences of varying lengths on the related charges. NO. 2000-1592 CRIMINAL TERM (5.) We violated the rule announced in Bruton v. United States 2by allowing the jury to hear an out of court statement made by the codefendant (6.) We erred in failing to tell the jury that the Commonwealth's eyewitness invoked his 5th Amendment right against self incrimination and, at the request of the Commonwealth, was granted immunity. (7.) We erred in failing to grant a mistrial as a result of certain alleged discovery violations committed by the Commonwealth. (8.) We erred in failing to suppress certain statements made by the defendant. (9.) We erred in failing to suppress certain physical evidence. We will address each issue in the following opinion. Sufficiency of the Evidence. The defendant filed a post sentence motion for judgment of acquittal in which he contended that the evidence was insufficient to sustain the verdict. The standard of review on a sufficiency of the evidence claim is whether all of the evidence together with the reasonable inferences to be drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to enable the fact finder to conclude that all of the elements of the offense, including defendant's involvement, were established beyond a reasonable doubt. Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923, (1999). In the instant case, we were satisfied that the standard had been met. The defendant did not suggest that the elements of first degree murder, or the various other crimes for which he was convicted, had not been proven in connection with the killing of Sydney Bull. Rather, he contended that his involvement had not been 2 391 u.s. 123, 88 S. Ct. 1620, 20 L.Ed 2d 476 (1968). NO. 2000-1592 CRIMINAL TERM proven beyond a reasonable doubt. He argued that without the testimony of erstwhile eyewitness Dontae Chambers (hereinafter "Chambers") the evidence was insufficient as a matter of law to prove his participation in the crime. While we disagree with that proposition, we also note that Chambers' testimony is part of the evidence and must be considered in reviewing defendant's claim. IN any event, with or without Chambers' testimony, the evidence was such as to enable the fact finder to conclude beyond a reasonable doubt that the defendant committed the crimes with which he was charged. The Commonwealth's case consisted of both eyewitness testimony and circumstantial evidence. The eyewitness testimony came from Chambers.3 He testified that he, the defendant, and the codefendant, Emmett Lockhart (hereinafter "Lockhart"), had planned to rob Sydney Bull of drugs and money. The three of them were in a vehicle which Bull, carrying a duffel bag, voluntarily entered. The defendant gave directions as Lockhart drove them into the mountains. At some point, the defendant produced a pistol grip shotgun which he held on Bull for the remainder of the trip. They eventually reached a place along a mountain road where they parked in a pull-off area. They marched Bull at gunpoint 20 to 30 yards into the woods. When they came to a clearing, the victim and Lockhart began to scuffle. The defendant shoved the shotgun into Bull's face and he froze. The barrel of the shotgun was only 2 or 3 feet from his face as he pleaded for his life. Then "from out of the blue, out of nowhere, Matt shot Sydney. ,,4 ~ Chambers was also charged in connection with the killing, but tried at a later time. 4 Trial Transcript, Volume 1, p. 200. After relating these events, Chambers began sobbing uncontrollably, necessitating a recess. NO. 2000-1592 CRIMINAL TERM Bull fell onto his back. The defendant went through his duffel bag and began digging through his front pockets. Lockhart had brought along a gas can and began pouring gasoline onto the body. The defendant threw lit matches onto the victim's chest and the fire spread to his head and down to his feet. Lockhart then set the gas can on fire about 20 feet from Bull's head. During the course of a masterful cross examination by defendant's counsel, Chambers recanted his entire testimony. He denied any knowledge of, or involvement in, the killing of Sydney Bull. He said that he made up everything he told the police "just to get them off my back.''5 However, Chambers gave details which were corroborated by other evidence, including physical evidence found at the scene. Furthermore, those details had never been made public. They included the following: · The victim was shot once with a shotgun. · The wound was to the left side of his face in the mouth area. · The shot was fired at very close range. · The victim was killed before he was burned. · The victim was lying on his back when he was burned. · The body was found in a clearing in the woods about 50 feet from a pull off area along a mountain road. · The body had been doused with gasoline. · A melted plastic gas container was found several feet from the head of the body. · The change and keys found near the body made it clear that someone had gone through the victim's pockets. · The victim' s book bag was found at the scene. While Chambers gave numerous contradictory statements to the police, all of the above facts were contained within those statements. It is certainly reasonable to infer that those details could only have been known to someone who had witnessed the murder. Trial Transcript, Volume 2, p. 58. NO. 2000-1592 CRIMINAL TERM In addition to the eyewitness testimony and the corroborating evidence referred to above, there was other circumstantial evidence to link the defendant to the murder. The victim was killed by a 12-gauge shotgun. The defendant owned a 12 gauge pistol grip shotgun.6 The victim was killed with a Remington No. 8 shotgun shell. The defendant had purchased a box of Remington No. 8 shotgun shells just a few days before the murder. Finally, the victim' s DNA was found on the defendant' s shotgun, about five inches from the front end of the barrel. Furthermore, the jury could certainly have considered the defendant' s statements and actions throughout the investigation as evidence of his guilt. He gave numerous inconsistent and contradictory statements as to his whereabouts at the time of the murder, including yet another version at trial. In addition, two days after the murder, when he heard that the police were looking to question him, he penned a suicide note to his girlfriend. It concluded with the statement, "a cage is no place for me baby.''7 About two weeks after the murder, the police confronted the defendant with their suspicion that he was present on the mountain when Bull was killed. While he initially denied it, he intimated that he knew more. He also indicated that he was afraid of someone, but could not give a name because he only knew the nickname.8 He also said that he was afraid for his life and that "no matter what ! tell you, I'm going to go to jail.''9 Before he gave any further details, he put his head down and started to sob. 6 Commonwealth Exhibit 13. It is interesting to note that Chambers described the shotgun as a pistol grip shotgun in his statements to the police. 7 Trial Transcript, Volume 5, p. 20. Commonwealth Exhibit 72. 8 Trial Transcript, Volume 6, p. 14. Trial testimony of several witnesses established that most people who dealt with Emmett Lockhart knew him only by his nickname, "Hassan". 9 Trial Transcript, Volume 6, p. 28. NO. 2000-1592 CRIMINAL TERM After the above encounter, the defendant penned another note, this one apparently to himself. The note read in relevant part: I couldn't talk about what I was afraid of. I couldn't give names of the people up there. How am I supposed to give an answer to that when I am going to get locked up. Asking me to incriminate myself. I don't know how you want me to answer that.l° In view of the above, we were satisfied that the evidence was sufficient to sustain the convictions. Verdict Against the Weight of the Evidence. Our appellate courts have often articulated the standard to be applied in determining whether a new trial should be granted on the grounds that the verdict is against the weight of the evidence. As the Superior Court recently stated: A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one's sense of justice. Furthermore, issues of credibility are left to the trier of fact; the jury is free to accept all, part, or none of the witnesses' testimony. (citations omitted). Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa. Super. 2000). Defendant argued that any verdict based upon the testimony of Dontae Chambers is inherently unreliable. However, that could be said of any verdict in which a codefendant or accomplice testifies. The jury was charged with the task of determining which portion, if any, of Chambers' testimony it chose to believe. It obviously chose to believe that portion which implicated the defendant in the commission of these crimes. There were many factors that could support that decision, including Chambers' demeanor Commonwealth Exhibit 98. NO. 2000-1592 CRIMINAL TERM on the stand, ~ the physical evidence that corroborated Chambers' statements to the police, and the web of circumstantial evidence, including the defendant' s conduct prior to his arrest. In any event, we were not prepared to substitute our judgment for that of the jury. Stated another way, the verdict was not such that it shocked our sense of justice. Therefore, we refused the defendant's request for a new trial. Failure to Instruct the Jury to Disregard Chambers' Testimony. Citing the case of Commonwealth v. Kibler, 215 Pa. Super. 367, 258 A.2d 681, (1969) the defendant argued that we were required to instruct the jury to disregard the testimony of Dontae Chambers. IfKibler were controlling, we would agree. However, Kibler was decided before the Supreme Court's decision in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) which held that a prior inconsistent statement of a non-party witness could be used as substantive evidence. See also Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). In both Brady and Lively, Commonwealth witnesses gave testimony at trial which contradicted their prior statements. The prosecution was permitted to introduce the witnesses' prior out of court statements as substantive evidence. In light of those cases, we can conceive of no reason why we should have instructed the jury to disregard the in-court, sworn testimony of Dontae Chambers. ~ One of several dramatic moments in this trial came as Chambers recounted the chilling events surrounding the murder. It appeared as though he was reliving those events. When he described the victim pleading for his life as the defendant shot him in the face, he began to cry uncontrollably, necessitating a recess. Trial Transcript, Volume 1, p. 200. NO. 2000-1592 CRIMINAL TERM Denial of Defendant's Frye Motion. The defendant filed a Frye Motion~2 seeking to prevent the Commonwealth' s DNA expert from giving certain opinion evidence. Specifically, the defense objected to the expert opining that the sample of Bull's DNA found on the barrel of defendant's shotgun was inconsistent with casual handling. The Frye rule "bars novel scientific evidence until it has achieved 'general acceptance' in the scientific community." Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314 (Pa. Super. 1997) affirmed 564 Pa. 3,764 A.2d 1 (2000). The rule was first laid down inFrye v. United States, supra, as follows: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs. 293 F. at 1014. (emphasis added) IN Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, (1994) the Pennsylvania Supreme Court stated that the Frye standard is to be applied "where scientific advances produce new types of evidence." 640 A.2d at 399.~3 However, we recognize that our appellate Courts have consistently held that "Frye applies not only to new inventions but 'whenever science enter the courtroom.'" Thomas v. West Bend Company, Inc., 760 ~2 Frye v. United States, 293 F. 1013 (D.C. Circ. 1923). The Frye standard was adopted in Pennsylvania by our Supreme Court in Commonwealth v. Topa, 471 Pa. 223,369 A.2d 1277 (1977). The Frye test has been replaced in federal court by the rule announced in Daubert v. Merrell Dow Pharmaceuticals', Inc., 509 U.S. 579 113 S.Ct. 2786, 125 L.Ed 469 (1993). However, for the time being at least, Frye remains the law of this Commonwealth. See Blum v. Merrell Dow Pharmaceuticals', Inc., 564 Pa. 3,764 A.2d 1 (2000). ~3 The Crews court held that the "new" technique of DNA testing met the Frye standard and could be admitted into evidence. NO. 2000-1592 CRIMINAL TERM A.2d 1174, 1179 (Pa. Super. 2000), quoting from Blum v. MerrellDow, supra, 705 A.2d at 1317 (emphasis added by Thomas Court). With the above law to guide us, we conducted an in camera evidentiary hearing on the motion. The Commonwealth' s expert was the only witness. She testified that in her opinion the amount and the clarity of the victim's DNA on the shotgun barrel was not consistent with his casual handling of the weapon. She further testified that although some cells containing DNA can be deposited on an item through casual handling, the amounts are small and can only be detected through the use of a special collection procedure not used in this case. 14 discusses that special procedure. She also made reference to literature in the field that Finally, she indicated that her conclusions were based upon reasoning which is generally accepted in the scientific community. Based upon her testimony, we denied the defendant's Frye motion. Codefendant's Out of Court Statement. While he was housed at the Franklin County Prison, codefendant Lockhart shared a cell with a Jacquin Ortiz. During the investigation, Mr. Ortiz told police that he had asked Lockhart, "Why did you let the white boy shoot the brother?" Lockhart allegedly responded, "He should have gave it up. We did what we had to do." Since the defendant was white and his codefendants were black, we required the Commonwealth to redact any reference to race. The question asked at trial was "Why did you boys shoot the The procedure is called "Low copy number DNA." Motion in Limine Transcript, pp. 27 - 28. Motion in Limine Transcript, p. 28. NO. 2000-1592 CRIMINAL TERM brother.''~6 We were satisfied that the redaction complied with the dictates of U.S.v. Bruton, supra, and Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845 (2001). Chamber's Assertion of his 5th Amendment Rights. A dramatic turn of events began with the following exchange during defense counsel's cross-examination of Dontae Chambers: Q. Have you been told by your attorney, Mr. Gregg Abeln, that as you sit here today that you could still be put to death? A. Yes, sir. Q. Were you even up there, Dontae? Because if you weren't ! want you to tell this judge and this jury because if you weren't, the most they can do to you is charge you with perjury. A. May ! speak with my attorney? Q. Yes. Do you want a break? A. Yes, sir.~7 During the recess, and after consultation with counsel, Chambers invoked his 5th Amendment right against self incrimination. The invocation was based upon his fear of prosecution for the "false" testimony he had given at the preliminary hearing and on direct examination. The Commonwealth offered him immunity from prosecution for any perjured testimony he may have given previously. ~8 Defendant argued that we erred in refusing to allow those proceedings to occur in the presence of the jury. It has long been the law of this Commonwealth that a witness may not be allowed to invoke his 5th Amendment rights in front of the jury. Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865, (1971). Addressing an issue similar to the one before us, the 16 Trial Testimony, Volume 4, p. 112. ~7 Trial Transcript, Volume 2, p. 41. ~8 Trial Testimony, Volume 2, pp. 55 - 56. It should be noted that the Commonwealth did not concede that his prior testimony was false. 10 NO. 2000-1592 CRIMINAL TERM Greene court held that "the jury may not draw any inference from a witness' exercise of his constitutional rights whether the inference be favorable to the prosecution or the 285 A.2d at 867. The Pennsylvania Supreme Court has also recognized defense... ". that: Although it could be argued that under certain circumstances, a refusal to testify on grounds of self-incrimination might have probative value in establishing an issue in a matter to which the witness was not a party... it is not permissible for either defense or prosecution to attempt to capitalize on such refusal. Commonwealth v. Todaro, 524 Pa. 64, 69, 569 A.2d 333,335 (1990) quoting from Commonwealth v. Duval, 453 Pa. 205, 307 A.2d 229, 232 -233 (1973). Based upon the above, we were satisfied that Chambers' invocation of his 5th Amendment rights should not have taken place in the presence of the jury. Defendant also contends that we erred in failing to advise the jury that Chambers was granted immunity. We note that we were never asked to advise the jury of this fact.19 However, even if we had been asked, we would have refused to give such an instruction because it was a fact that could properly have been elicited through cross examination.2° Furthermore, we fail to see how it would have added anything to the truth determining process. The jury was well aware that Chambers' prior sworn testimony implicating the defendant was inconsistent with his subsequent sworn testimony exonerating the defendant. If there was anything clear at the trial of this case, it was that Dontae 19 While defendant's counsel requested that we allow Chambers to assert the 5TM Amendment in front of the jury, he did not renew that request with regard to the grant of immumty. (Trial Transcript, Volume 2, pp. 49 - 54). We further note that we approved all of the defendants requested points for charge (Trial Transcript, Volume 8, p.4) and that defense counsel was satisfied with our charge as given (Trial Transcript, Volume 8, pp. 128 - 129). :0 While defense counsel had the opportunity to bring the grant of immunity to the jury's attention during the cross examination of Chambers, he elected not to do so. 11 NO. 2000-1592 CRIMINAL TERM Chambers lied under oath. It was for the jury to determine which portion of his testimony was the lie and which portion the truth. Denial of Defense Requested Mistrial. The defendant's counsel requested a mistrial based upon the Commonwealth's failure to disclose "exculpatory" evidence in discovery. During direct examination, Chambers testified that he had told the police that a Bernard Adams had been on the mountain with him earlier on the day of the murder. The circumstances surrounding that statement were described by Cpl. Junkin in the following exchange with Lockhart' s counsel: Q. Where is the wall with regard to - - if the red is where the body was found, how far away is the wall past the red dot? A. ! believe it is a half-mile to a mile, further up the mountain on Hogshead Road. Q. At any point in time during his story on the 9th, did he say anything to you with regard to previously being up on the mountain with anyone else earlier in the day? A. Yes. Q. Okay. What did he tell you in regards to that? A. He stated at one point when he was discussing about the robbery of Sydney, that he had been dropped off earlier in the day up at the wall, which would have been the location half a mile to a mile from that scene. And that he and another black man were dropped off. ! asked him about that. Q. How? ! mean, how did you ask him about that? Did you shout at him? Did you threaten him? What did you do? A. No, ! said another black man? ! said, Who was it? He said ! don't know. ! said, Dontae, you were dropped off in the middle of the mountain with a guy. Who were you dropped off with? And he said, Nard. Q. Who you knew to be? A. Bernard Adams. Q. What did you say in that regard? A. ! basically sat back in my chair, folded my arms, and said, Dontae, ! said, you are telling me that two black men got dropped off in the 12 NO. 2000-1592 CRIMINAL TERM middle of the mountain, in the middle of the afternoon to hang out? And he said, No. And ! said, Why? Q. And he said? A. Because rednecks would mess with us. Q. Did you put that in your report at all? A. No. Q. Why not? ! mean, here he said that he was a half-mile away from the murder scene on the day with somebody else in the middle of the day. Why didn't you put that in your report, Corporal? A. Because it was a fleeting statement. It was one of those where he started to go off. ! redirected. That happens in every interview. And many interviews in this particular case where statements were made that were a quick one, and right away it was recanted, and was proven or obviously not true.2~ The Commonwealth recounted the passing nature and immediate recantation of the reference to Bernard Adams. It also explained the circumstances surrounding its failure to provide the details of the statement to the defense. We were satisfied that the failure was inadvertent. While we denied the request for a mistrial, we offered to recess, for up to several days, to give counsel the opportunity to investigate further. We also directed the Commonwealth to make the police officers available to be interviewed by defense counsel regarding the circumstances surrounding the statement. Pa. Rule of Criminal Procedure 573(e) gives us broad discretion in fashioning an appropriate remedy for the violation of discovery rules, with the remedy of mistrial to be warranted only if the defendant is deprived of a fair trial. Commonwealth v. Ligons, 565 Pa. 417, 773 A.2d 1231 (2001). In the instant case, we were of the opinion that the remedies offered were sufficient to insure a fair trial. We did not see the need to resort to the drastic remedy of granting a mistrial. This was especially true in light of the fleeting nature of the reference to Bernard Adams and the immediate recantation of the Trial Transcript, Volume 3, pp. 69 - 71. 13 NO. 2000-1592 CRIMINAL TERM story in which he was mentioned. IN its brief in opposition to defendant's post sentence motions, the Commonwealth contended that it did not violate any discovery rules. It argued that the police are not required "to tape every conversation or take detailed notes of all activity on every investigation." Commonwealth v. Small, 599 Pa. 423,741 A.2d 666, 677 (1999). The Commonwealth also asserted that it was not a violation of Brady v. Maryland, 373 U.S. 83, 83 $.Ct. 1194 (1963) because the evidence was not "material" in that it could not have affected the outcome of the trial. United States v. Bag/ey, 473 U.S. 667, 105 S.Ct. 3375 (1985) and Commonwealth v. dohnson, 556 Pa. 216, 727 A.2d 1089 (1999). While the arguments of the Commonwealth have merit, and formed one of the bases for our refusal to grant a new trial, they were neither advanced to nor considered by us at the time the mistrial was refused. Frankly, all parties were operating under the assumption that a discovery violation had occurred. The remedy we fashioned was designed to insure a fair trial in light of that perceived violation. Suppression of Evidence. The defendant filed an omnibus pretrial motion in which he sought, inter alia, to suppress numerous statements made to, and various items of physical evidence seized by, the police. Hearings on the motion were held before us on December 1, 2000, and January 19, 2001. On appeal, defendant alleges that were erred in failing to suppress the statements he made to the police on May 8, 2000.22 He also alleges that we erred in failing to suppress the shotgun obtained from him as well as certain clothing obtained See Concise Statement of Matters Complained of on Appeal, paragraph G. 14 NO. 2000-1592 CRIMINAL TERM from his girlfriend's car.23 We will recount the findings of fact and legal conclusions upon which we based our refusal to suppress those particular items of evidence. May 8, 2000 Statement. On May 8, 2000, the defendant was taken into custody at the Philadelphia Airport by three members of the Pennsylvania State Police. He was handcuffed and taken to a local police station to have blood drawn pursuant to a valid search warrant.24 The defendant was specifically advised that he was not under arrest and that he would be released as soon as the blood had been drawn. On the way to the police station the defendant began asking questions. He was advised of his Miranda warnings, understood them and voluntarily waived them. He then volunteered certain information to the police. After the defendant's blood was drawn, he was told that he was no longer in custody and that he was free to leave. However, he asked the police to give him a ride back to the airport and they agreed. Prior to entering the car, the defendant was again advised that he was not in custody and that he was free to leave at any time. On the ride to the airport, the defendant began conversing with the three policemen. The police participated in the conversation hoping to elicit certain information from him. The tone of the conversation was serious, yet cordial and nonconfrontational. While the defendant became visibly upset at times, it was due to the gravity of his predicament, not because of the officers' conduct. :~ See Concise Statement of Matters Complained of on Appeal, paragraph H. 24 Defendant's omnibus pretrial motion did not question the validity of the warrant. 15 NO. 2000-1592 CRIMINAL TERM Once they arrived at the airport, the defendant indicated that he still wanted to talk. However, he only wanted to talk to one officer. Again, it was made clear to him that he was free to leave. The officer questioned him and obtained statements regarding the case. While the defendant again became upset at times, it was because he was an obvious suspect in a homicide investigation, not because of anything the officer did or said. It eventually became apparent that defendant's ride had not come to the airport or, if she had, was no longer there. Newton Square, Pennsylvania. The defendant asked the police to give him a ride to They agreed. While enroute, the police again engaged the defendant in conversation in order to elicit statements regarding this case. Yet again, the defendant was aware that he did not have to answer any questions and that he was free to leave. IN fact, the interview terminated when defendant informed the police that he did not want to answer any more questions. He further stated that he would get out of the car if any more questions were asked. The defendant contended that all statements made by him to the police on that day should have been suppressed. He made several arguments in support of his contention. They were as follows: 1 .) The Commonwealth had no authority to detain him "in handcuffs" for purposes of executing the search warrant for his blood. 2.) Any statements made after the blood was drawn were made without the benefit of his Miranda warnings. 3.) The statements were obtained through the use of deception. 16 NO. 2000-1592 CRIMINAL TERM 4.) Defendant's emotional state was such that his statements could not have been voluntary. We found each argument to have been without merit. Defendant first argued that taking him into custody in order to serve the search warrant for his blood amounted to an illegal arrest requiring the suppression of all statements obtained thereafter. His argument was based upon the "fruit of the poisonous tree" doctrine which is well established in our law. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963); Commonwealth v. Stevenson, 560 Pa. 345, 744 A.2d 1261 (2000). However, that doctrine is not applicable in the instant case because defendant's detention was neither an arrest nor illegal. Our Courts have long held that police may properly detain persons during the execution of a search warrant for the safety of the officers or to prevent efforts to conceal or destroy evidence. Such temporary detention is not an arrest. See Commonwealth v. Markovitch, 388 Pa. Super. 244, 565 A.2d 468 (1989) and Commonwealth v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737 (1991). IN the case at bar, the police advised defendant that he was not under arrest, but that he was being detained solely for the purpose of drawing blood pursuant to the search warrant. He was detained only long enough for the warrant to be properly executed. He was released immediately thereafter. We found nothing improper with that procedure. The defendant next argued that he did not receive any further Miranda warnings after his blood was drawn. However, we were satisfied that none were necessary. Miranda warnings are required where a suspect is subject to custodial interrogation. Interrogation occurs where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect. A person is in custody for the purposes of 17 NO. 2000-1592 CRIMINAL TERM Miranda where he "is physically denied his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by the interrogation." Commonwealth v. Thompson, 778 A.2d 1215, 1221 (Pa. Super. 2001), quoting from Commonwealth v. Pitts, 740 A.2d 726, 731 (Pa. Super. 1999). While the statements made after his blood had been drawn were clearly the product of police interrogation, it was equally clear that the defendant was not in custody at the time they were made. He was aware at all times that he was free to leave and that he did not have to answer any questions. He was repeatedly advised of those facts by the police. He evidenced his understanding of those concepts when he stated, "If you ask me anymore, I'm going to get out of the car.''25 Furthermore, the questioning stopped immediately after the defendant said that he did not desire to answer any more questions. The defendant next argued that the troopers' use of artifice and deception required the suppression of his statements. Specifically, he complained that they made "accusations that had no basis in fact". While there are certain circumstances in which the use of "artifice, deception or fraud" may require the suppression of statements obtained thereby, the "subterfuge" must be "so reprehensible as to offend basic societal notions of fairness... ". Commonwealth v. Jones, 457 Pa. 123,322 A.2d 119, 126 As the Superior Court, modifying a direct quotation from the Supreme Court, (1974). stated: But we note that, arguendo, even if there had been no witnesses who could have allegedly connected Appellee to the murder, the police officers' statements to Appellee regarding witnesses would have been proper since, "in certain circumstances, the use of artifice or deception to obtain a confession [or, by analogy, to attempt to prod a suspect into providing more candid information during an interrogation] is insufficient to make an otherwise voluntary confession [or voluntary statements by a Proceedings of December 1, 2000, p.75. 18 NO. 2000-1592 CRIMINAL TERM suspect] inadmissible where the deception does not produce an untrustworthy confession [or statements] or offend basic notions of fairness." Commonwealth v. Williams, 537 Pa. 1, 17-18, 640 A.2d 1251, 1259(1994). Commonwealth v. Kitchen, 730 A.2d 513, 521 n. 5 (Pa. Super. 1999). The deceptions, such as they were, in the case before us did not even approach the threshold of violating notions of fairness. They were merely "attempts to prod the suspect into providing more candid information". Id. Far from being "reprehensible," the troopers' intimation that they knew more than they actually did was well within the scope of good police work. Defendant's final argument revolved around his psychological state. He contended that his emotional condition coupled with the circumstances surrounding his "illegal detention" and the police conduct toward him made his statements involuntary. IN support of his position, he cited the case of Commonwealth v. Carter, 377 Pa. Super. 93,546 A.2d 1173 (1998). IN determining whether a statement is voluntary, we must look at the "totality of the circumstances." Id. The Carter Court went on to state: Factors which must be looked to in reaching this determination include the following: the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused' physical and psychological state, and any other conditions which "may serve to drain one's powers of resistance to suggestion and undermine his self-determination." 546 A.2d 1173, 1177 (citations omitted). However, Carter is inapplicable because it dealt with a custodial interrogation. IN the instant case, the defendant was not in custody at any time after his blood had been drawn.26 IN any event, neither the attitude of the police nor defendant's psychological condition were such as to require the suppression of his statements. Throughout the day, 26 The entire encounter with the police on May 8, 2000, took only about 2 1/: hours. He was in custody only about 1/: hour of that time, during which time he received and waived his Miranda rights. 19 NO. 2000-1592 CRIMINAL TERM the police attitude toward him was professional, courteous and nonconfrontational. Even when they articulated their disbelief of his statements, they did so in a friendly, sometimes even jovial, manner. While there were times that defendant was visibly upset, these were only brief periods and were not out of the ordinary for someone who is aware that he is a suspect in a murder investigation. We were satisfied that defendant's statements to the police on May 8, 2000, were not the result of an illegal arrest or detention, nor were they the product of custodial interrogation. Further, they were not rendered untrustworthy because of police deception nor involuntary because of the defendant's psychological state. Therefore, his motion to suppress them was denied. The Shotgun. Corporal Junkin first made contact with the defendant in the parking lot of the ×GI fraternity house on April 26, 2000. He advised the defendant that members of the fraternity were being asked to voluntarily supply their weapons for visual inspection. The corporal had been informed that the defendant had a shotgun and asked if he could see it. The defendant indicated that he had loaned the shotgun to some friends, but that he could get it if the corporal wished. Junkin responded, "If you don't mind". One of his friends went to retrieve the shotgun and the defendant voluntarily allowed Corporal Junkin to visually inspect it. 20 NO. 2000-1592 CRIMINAL TERM During a second interview on that same day, Corporal Junkin asked if he could take the defendant's shotgun for testing. The defendant refused. However, a day or so later the defendant voluntarily gave his shotgun to the police for testing.27 The defendant argued that the inspection of his shotgun and its eventual seizure were unlawful. We disagreed. The shotgun was inspected, and later seized, pursuant to a valid consent given by the defendant. As the Pennsylvania Supreme Court has noted: Under both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, a search such as that at issue here, which is conducted without a warrant, is deemed to beper se unreasonable. Certain specifically established exceptions, one of which is a valid consent may, however, render an otherwise illegal search permissible. It is the state's burden to prove consent. This court, as well as the United States Supreme Court, has long adhered to the principle that for purposes of the Fourth Amendment, consent must have been given voluntarily. (citations omitted) Commonwealth v. Cleckley, 558 Pa. 517, 520 738 A.2d 427, 429 (Pa. 1999). To be valid, the consent to search must be voluntarily given and not the result of coercion and duress. Id. at 430. The voluntary nature of the consent is a question of fact to be determined from the totality of the circumstances. Id. IN the instant case, we were satisfied that the defendant voluntarily consented to allow the police to inspect and later to seize the weapon. He was not in custody. There was no evidence of coercion, deceit, or trickery.28 Furthermore, we were satisfied that he read, signed and understood the "Waiver of Rights and Consent to Search" form which specifically provided, inter alia, in bold letters: 27 Commonwealth's Omnibus Pretrial Motion Exhibit #3 is an undated "Waiver of Rights and Consent to Search" which was executed by the defendant when he turned over the shotgun. 28 We found as a fact that the defendant was not tricked into consenting to a warrantless seizure of his shotgun. While the police did advise him that they were going to test all shotguns received from members of his fraternity, his was the only shotgun they received. 21 NO. 2000-1592 CRIMINAL TERM I have been told that I do not have to give my consent. I understand that I have the right to refuse this request... Nonetheless, I voluntarily give my consent...29 Under these circumstances we held that the shotgun was appropriately seized. Search of Girlfriend's Vehicle. Defendant's girlfriend, Allison Lee, voluntary consented to the search of her vehicle on April 26, 2000, and again on April 29, 2000. On each occasion she signed "Waiver of Rights and Consent to Search" forms which were identical to the one signed by defendant in connection with the seizure of his shotgun.3° Pursuant to the consent of April 29, 2000, she allowed the police to impound the car for in-depth processing. Thereafter, defendant's pants were taken from the vehicle when an arson investigation dog "hit" on them.3~ The defendant argued that his pants should have been suppressed because Ms. Lee had no authority to consent to their warrantless seizure. We disagreed. A person with "common authority" over property can consent to its search and the seizure of items contained therein. Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), Commonwealth v. Garcia, 478 Pa. 406 387 A.2d 46 (1978). As the Silo court stated: Common authority.., does not rest upon the law of property .... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes .... 389 A.2d at 66. See also Commonwealth v. Whiting, 767 A.2d 1083 (Pa. Super. 2001). 29 Commonwealth Omnibus Pretrial Motion, Exhibit 3. ~0 The "Waiver of Rights and Consent to Search" authorized the seizure of, inter alia, "property which constitutes evidence of the commission of a criminal offense." See Commonwealth Omnibus Pretrial Motion, Exhibit 5. ~ Omnibus Pretrial Motion, December 1, 2000, p. 141. 22 NO. 2000-1592 CRIMINAL TERM IN the instant case, Ms. Lee certainly had such "common authority" over the vehicle. While it was registered jointly to her and her mother, she was the primary driver. Although she allowed the defendant to use it, that did not in any way diminish her access to or control over the vehicle. As the United States Supreme Court recognized, parties who share "joint access or control for most purposes" assume the risk that "one of their number might permit the common area to be searched." United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974). Defendant certainly assumed that risk in the case at bar.32 Therefore, we did not grant his request to suppress the items seized from Ms. Lee's car. DATE Edward E. Guido, J. Jaime Keating, Esquire For the Commonwealth William Costopoulos, Esquire For the Defendant :sld 32 We also note that the defendant was present when Ms. Lee gave her consent to search the vehicle on April 26, 2000. He listened to the "Consent to Search" form being read to her by the police. He even signed as a witness on that form. Yet he neither objected to the search of the vehicle nor did he claim a possessory interest in any of the items contained therein. 23