HomeMy WebLinkAboutCP-21-CR-696-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-CR-0696-2009
:
:
COLTON MATTHEW HARDY :
IN RE: OMNIBUS PRETRIAL MOTION
BEFORE HESS, P.J.
OPINION AND ORDER
Before the court is the defendant’s Omnibus Pretrial Motion, wherein he seeks the
following relief: suppression of a confession, other incriminating statements, and physical
evidence seized by police; quashing of the Commonwealth’s notice of aggravating
circumstances; a change of venue or venire; a declaration that 42 Pa.C.S.A. § 9711 is
unconstitutional; and an order barring the Commonwealth from seeking the death penalty in the
case sub judice. For the reasons stated below, we deny the motion.
Around 7:05 a.m. on February 8, 2009, the Pennsylvania State Police were summoned to
730 Torway Road, Gardners, the home of Ethel Weaver (“the victim”), where she was
1
discovered dead earlier that morning. (N.T. 3/25 11:17-25, 5:4-19). After arriving on the scene,
officers began to canvass the victim’s neighborhood in search of any useful information for their
investigation. One of the officers conducting canvass interviews, Trooper Tandy Carey, went to
701 Torway Road, the residence of the Hardy family. (N.T. 3/25 5:20-6:3). There, Trooper
Carey interviewed three people: Wayne Hardy, Susan Hardy, and Colton Hardy (“the
1
Due to scheduling constraints, the hearing on the defendant’s Omnibus Pretrial Motion took place in two phases:
March 25, 2010 and May 21, 2010. Citations to the record produced at those hearings are “N.T. 3/25” and “N.T.
5/21,” respectively.
CP-21-CR-0696-2009
defendant”). (N.T. 3/25 5:24-6:3). While Trooper Carey’s interactions with Wayne and Susan
Hardy were unremarkable, she noticed that the defendant’s hands were cold and clammy and that
he seemed very nervous when speaking with her. (N.T. 3/25 6:6-9, 7:13-14). After leaving the
Hardy home, Trooper Carey proceeded back to the crime scene, where she alerted Corporal
Daren Hockenberry to her observations of the defendant. (N.T. 3/25 8:14-21).
Around 3:30 p.m. the same day, Trooper Kenneth Tallman and Corporal George Cronin
visited the Hardy residence and asked the defendant to accompany them to the state police
barracks for a formal interview about the victim’s death. (N.T. 3/25 16:9-15, 17:11-7). The
defendant agreed to give the interview. (N.T. 3/25 17:17). Trooper Tallman drove the defendant
to the state police barracks in his unmarked police vehicle. (N.T. 3/25 18:17-21). The
defendant, unrestrained, sat in the front passenger seat. (N.T. 3/25 18:22-19:3). During the
twenty minute drive to the state police barracks, the defendant dominated the conversation with
Trooper Tallman, talking about playing video games, going with his family to a farmers market,
and asking questions about the investigation into the victim’s death. (N.T. 3/25 14:6-7, 19:10-
20:12).
Upon their arrival at the state police barracks, Trooper Tallman and the defendant entered
through an employee entrance, because other witnesses waiting to be interviewed were in the
lobby. (N.T. 3/5 20:18-25). Trooper Tallman and Corporal Cronin took the defendant directly
to an interview room around 4:00 p.m. (N.T. 3/25 21:5-12, 22:21-23). The interview room was
ordinary, being about eight feet by eight feet with a desk, several chairs, a solid wooden door,
and a one-way mirror. (N.T. 3/25 21:13-22:1). The defendant was left there unattended for
about 18 minutes. (N.T. 3/25 57:15-20). He was not restrained in any way. (N.T. 3/25 23:5-10).
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The officers informed the defendant that the entire interview would be audio recorded. (N.T. 3/5
22:16-20).
When Trooper Tallman and Corporal Cronin reentered the room, the defendant was
seated at the desk facing the door. The two police officers then sat on the other side. (N.T. 3/25
22:4-12). The door was shut, but neither Trooper Tallman nor Corporal Cronin blocked the
defendant’s path to the doorway. (N.T. 3/25 21:23-24, 22:8-15). Corporal Cronin described the
first four hours and forty minutes of the interview as “a three-way conversation” where neither
he, nor Trooper Tallman, nor the defendant dominated. (N.T. 3/25 93:10-17). The defendant
was eager to speak, as noted by Corporal Cronin: “At the risk of sounding glib, I think if
[Trooper Tallman and I] would have told [the defendant] to be quiet, he would not have listened
to us.” (N.T. 3/25 94:2-4). The questions asked by the policemen at this point were intended to
establish rapport with the defendant and provide them with insight into the defendant’s
background. (N.T. 3/25 93:17-20).
Trooper Tallman and Corporal Cronin spent the majority of the first portion of the
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interview asking for the defendant’s help in solving the crime. (N.T. 3/25 24:12-14). At one
point, about two and a half hours into the interview, the defendant indicated to the officers that
he was “running on fumes,” apparently referring to his efforts to brainstorm theories about the
victim’s death. (N.T. 5/21 42:7-20). After making that comment, the defendant immediately
continued speaking, offering more theories to Trooper Tallman and Corporal Cronin. (N.T. 5/21
42:21-43:1). Nearly three hours into the interview, the defendant mentioned taking a nap, and
2
The term “first portion of the interview” is used throughout this opinion to refer to the first four hours and forty
minutes of the defendant’s interaction with Trooper Tallman and Corporal Cronin, which ended around 8:40 p.m.
For ease of reference, the entire encounter is divided into three phases: the first portion of the interview, the trip to
McDonald’s, and the second portion of the interview, in which the defendant confessed to the crime.
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then immediately continued theorizing with the police. (N.T. 5/21 43:2-14). About half an hour
later, the defendant commented about wanting to go home. (N.T. 5/21 44:1-4). Corporal Cronin
then asked the defendant if he would stay and help the police out, and the defendant readily
obliged. (N.T. 5/21 44:5-8). Four hours and twenty minutes into the interview, the defendant
commented about being tired, but stayed and continued speaking without any prompting. (N.T.
5/21 44:11-18).
During the first portion of his interview with Trooper Tallman and Corporal Cronin, the
defendant never told the officers to call his father so he could leave. (N.T. 3/25 26:5-8). He
never demanded the police take him home. (N.T. 3/25 26:11-13). The defendant also never
requested an attorney. (N.T. 3/25 26:9-10). Throughout the first four hours and forty minutes of
the interview, the tone of the police remained “very low key.” (N.T. 3/25 26:16-18).
Throughout the course of that time, the defendant was allowed to take bathroom and cigarette
breaks. (N.T. 3/25 25:4-8). He was also left unaccompanied in the room at several points. (N.T.
3/25 26:19-24). Despite the defendant’s comments about growing fatigued, neither Trooper
Tallman nor Corporal Cronin observed any physical indicia of fatigue in the defendant
throughout the interview. (N.T. 3/5 59:4-6, 94:17-19).
Around 8:40 p.m., the defendant indicated that he was tired and hungry, and Corporal
Cronin suggested that he and Trooper Tallman take the defendant to get something to eat. (N.T.
3/25 69:20-23, 24:7-21). At that point, Corporal Cronin told the defendant that the plan was to
eat and then return to the station and resume the interview, to which he replied, “I am cool with
whatever.” (N.T. 5/21 45:20-25). After the defendant agreed to the trip, and Trooper Tallman
and Corporal Cronin took the defendant to a nearby McDonald’s restaurant in an unmarked
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police car. (N.T. 3/25 27:5-7, 28:3-6). The defendant was unrestrained throughout the entire
trip. (N.T. 3/25 27:25-28:2, 28:9-10). While at the restaurant, Corporal Cronin noted that the
defendant was “gregarious,” “energetic,” and engaged another group of patrons with “much
laughter.” (N.T. 3/25 95:18-22). The defendant was also given a cigarette break before the
group left the restaurant. (N.T. 3/25 95:24-25).
The three returned to the state police barracks around 9:45 p.m., at which point the
defendant commented that he was very fast and thought he could run away from the officers.
(N.T. 3/25 73:6-9, 72:15-22). On cross-examination, Trooper Tallman explained that had the
defendant decided to run at that point, he and Corporal Cronin would not have pursued him: “I
couldn’t chase him. I mean, I couldn’t. He wasn’t under arrest.” (N.T. 3/5 72:8-9). Before
getting out of the vehicle, the defendant told the officers that he was tired and wanted to go
home. (N.T. 3/5 28:18-19). Corporal Cronin then told the defendant that he had “a thousand
questions” he would like to ask him and asked the defendant for fifteen more minutes. (N.T. 3/5
28:19-21). The defendant compromised and agreed to give ten more minutes. (N.T. 3/5 28: 21-
22). The three then returned to the interview room.
After reentering the interview room, Trooper Tallman and Corporal Cronin took a
slightly different approach to their interview with the defendant. As opposed to the first portion
of the interview, in which the officers asked the defendant for his theories about how the crime
was committed, they questioned whether the defendant played a direct role in the victim’s death.
(N.T. 3/5 29:16-20). After the defendant denied having any involvement, the officers asked him
whether he would submit to a polygraph. (N.T. 3/5 29:20-22). The defendant indicated that he
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wished not to perform the test, and he requested that the police turn off the recording device so
he could explain his reservations. (N.T. 3/5 29:22-25).
With the recorder off, Trooper Tallman and Corporal Cronin continued to question the
defendant about the possibility of his direct involvement with the victim’s death. (N.T. 3/5 31:3-
4). In doing so, they confronted him about the inconsistencies in his story and with information
gathered by other police officers throughout the day. (N.T. 3/5 31:1-25). Among the
information presented to the defendant was the officers’ knowledge of his call to a neighbor
telling her that the victim had been beaten to death, placed hours before the coroner was able to
reach that conclusion. (N.T. 3/5 31:13-20). They continued with theories about the defendant’s
involvement in the crime, asking about whether any of the defendant’s hairs or bodily fluids
would be found inside the victim’s vehicle. (N.T. 3/5 32:14-25).
Trooper Tallman and Corporal Cronin then theorized to the defendant that he might have
blacked out and did not remember entering the victim’s home. (N.T. 3/5 33:5-7). After asking
the defendant whether the police would find any incriminating evidence if they searched his
home, the defendant admitted being in the victim’s home the night she was killed. (N.T. 3/5
33:7-13). Sensing momentum with the defendant, Trooper Tallman and Corporal Cronin did not
interrupt the defendant to turn the recorder back on. (N.T. 3/5 79:14-18). At this point, Corporal
Cronin moved face-to-face with the defendant and used a paternal tone of voice as he addressed
him. (N.T. 3/5 110:3-22). Next, the defendant explained that he went into the victim’s home to
get the key to her car. (N.T. 3/5 33:20-34:11). The defendant then told the officers how he
entered the home, which was corroborated by the officers’ observations during their visit to the
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home later that night. (N.T. 3/5 34:12-25). The defendant then confessed to the murder, after
which Trooper Tallman, Corporal Cronin, and the defendant all took a break. (N.T. 3/5 35:6-8).
Around 12:36 a.m., after the defendant admitted to killing the victim, the recording
equipment was turned back on, and Trooper Tallman read the defendant his Miranda rights.
(N.T. 3/5 35:1-36:26). In addition to reviewing the details of his confession on the recording, the
officers asked the defendant for his opinion on how he had been treated by the police throughout
3
the night. (Commonwealth’s Exhibit 2, admitted Mar. 25, 2010). On that subject, the following
exchange occurred:
Corporal George Cronin: Okay. How, how
have we treated you
Matt?
Colton Hardy: Excellent. Utmost
respect.
Corporal George Cronin: Good. Do you have any
complaints whatsoever?
Colton Hardy: No. I’m very thankful.
Corporal George Cronin: Why are you thankful?
Colton Hardy: So I can put this behind
me and I don’t have to
hold it in.
Corporal George Cronin: Well why did you tell us
what happened to Ethel
and the car? Why did
you tell us about all
that?
Colton Hardy: I couldn’t take it. I
couldn’t hold it in. I felt
so bad.
(Com. Ex. 2 at 27). The defendant also agreed to return to the victim’s home in order to walk the
police through and show how and where he entered. (Com. Ex. 2 at 28). Nothing was offered in
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exchange for the defendant’s help, nor was he threatened in order to induce his cooperation.
(N.T. 3/5 98:15-99:3). At 1:05 a.m., the interview concluded, and the recording equipment was
turned off. (Com. Ex. 2 at 31).
After the defendant agreed to return to the victim’s home with police, he was alone in the
hallway at the state police barracks with Corporal Cronin while Trooper Tallman made
arrangements to return to the scene with the defendant. (N.T. 3/5 97:15-98:3). While in the
hallway, the defendant continued to engage Corporal Cronin about what would happen to him.
(N.T. 3/5 98:4-9). As Corporal Cronin recalled, “And he started to talk to me about beating this,
because he was going to claim insanity.” (N.T. 3/5 98:9-10).
Shortly after his confession and brief exchange with Corporal Cronin in the hallway at
the state police barracks, the defendant was taken by police to the victim’s home. (N.T. 3/5
38:22-25). While there, he showed and explained to police how he entered the victim’s home.
(N.T. 3/5 38:16-21). The defendant’s participation was by his agreement, and the police neither
promised him anything nor threatened him in order to get his participation. (N.T. 3/5 39:6-16).
Around 3:00 a.m., Sergeant Jonathan Mays, Trooper Mark Gray and Corporal
Hockenberry went to the defendant’s home for the purpose of executing a search warrant. (N.T.
5/21 31:5-18). Sergeant Mays sent Trooper Gray and Corporal Hockenberry ahead of him in
order to make contact with the defendant’s father and step-mother prior to his arrival with the
signed warrant. (N.T. 5/21 32:7-18). Upon their arrival, the defendant’s father informed
Trooper Gray and Corporal Hockenberry that no warrant was required for their search of the
defendant’s room. (N.T. 5/21 16:15-18, 32:22-25). The defendant’s father led the officers to the
3
The Commonwealth’s Exhibit 3 is a transcript of the final portion of the defendant’s interview with Trooper
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defendant’s room on the second floor of the home and let them in, where they located remnants
of a blue latex glove as well as a pair of jeans and a jacket that had what appeared to be fresh
blood stains on them. (N.T. 5/21 15:6-16:4). Trooper Gray and Corporal Hockenberry waited
for Sergeant Mays’ arrival, and these items were then seized pursuant to the search warrant.
(N.T. 5/21 33:4-9).
While the search of his bedroom took place, the defendant was left outside in a police
vehicle, accompanied by Corporal Michael Brandtonies. (N.T. 5/21 5:7-24). Before entering the
vehicle, Corporal Brandtonies was informed by Corporal Cronin that the defendant had already
received his Miranda warnings. (N.T. 5/21 5:25-6:1). Immediately, the defendant engaged
Corporal Brandtonies without prompt, talking about a number of subjects, including driving the
victim’s vehicle on Route 15 and slamming on the brakes after realizing what he had done.
(N.T. 5/21 6:6-8, 8:2-10). During the entire hour that Corporal Brandtonies spent with the
defendant, he asked two questions – one in response to the defendant’s comment about his
attorney, and the other about whether the defendant needed medical attention when he observed
the defendant shaking. (N.T. 5/21 6:8-20).
Near the conclusion of the officers’ search of the defendant’s home, the defendant was
brought in to help find the t-shirt he was wearing when he entered the victim’s home. (N.T. 3/5
41:5-13). As with his assistance at the victim’s home, the defendant’s help in locating the t-shirt
was entirely voluntary; no threats were made, and the only request of the defendant honored by
the police was to have his parents in a separate room when he entered the home. (N.T. 3/5 40:9-
Tallman and Corporal Cronin.
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23). After locating the shirt, the police also located the cell phone mentioned earlier by the
defendant, which was seized later under a separate search warrant. (N.T. 3/5 41:5-22).
Following the search of the defendant’s bedroom, the police searched Susan Hardy’s
minivan with her consent, looking for the key to the victim’s car, which the defendant had
hidden inside earlier. (N.T. 5/21 33:10-23). Unable to find the key on their own, the police
again enlisted the help of the defendant, who had volunteered to help recover it. (N.T. 5/21
34:10-35:10). The key, which had blood on it, was recovered by the defendant, who reached
inside the void created by a torn seam in one of the van’s seats, where he had hidden it earlier.
(N.T. 5/21 35:1-5).
Later that morning, around 7:17 a.m., the defendant appeared before Magisterial District
Judge Susan Day via two-way simultaneous audio-visual communication for the purpose of a
preliminary arraignment pursuant to Pa. R. Crim. P. 540. (Stipulation dated May 28, 2010). Bail
was not set and the defendant was committed to Cumberland County Prison. Id. At the time of
his arraignment, the defendant completed and signed an Application for the Assignment of
Counsel, which was approved by Magisterial District Judge Day during the preliminary
arraignment. Id.
On February 9, 2009, Trooper Gray executed a search warrant on the defendant, the
purpose of which was to photograph the defendant’s injuries. (N.T. 5/21 16:19-24, 17:13-17).
Upon making contact with the defendant at Cumberland County Prison, Trooper Gray advised
him that his Miranda warnings still applied and verbally reread the Miranda warnings to the
defendant. (N.T. 5/21 18:5-11). After the photographs had been taken, the defendant began to
speak to Trooper Gray as he inventoried the photographs. (N.T. 5/21 19:4-24). One of the
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defendant’s comments pertained to his concern about the police’s search for blunt instruments.
(N.T. 5/21 21:19-25). He informed Trooper Gray that there were no weapons, that he had used
only his hands. (N.T. 5/21 22:2-3). The defendant then stated that the gash on his right hand had
to be from striking the victim. (N.T. 5/21 22:15-21). The defendant then recounted beating the
victim without any prompting or questioning from Trooper Gray. (N.T. 5/21 22:23-23:12).
Trooper Gray then asked the defendant if he had been using any alcohol or drugs that evening,
and the defendant replied that he had not and then recounted how he entered the victim’s home.
(N.T. 5/21 23:15-24:22). Finally, he asked the defendant if he regretted what he did to the
victim, and the defendant nodded affirmatively and stated that he did. (N.T. 5/21 24:23-25).
The next day, February 10, 2009, police returned to Cumberland County Prison to
execute another search warrant on the defendant for the purpose of photographing his injuries.
Trooper Bryan Henneman executed the warrant, accompanied by Trooper Tallman and Corporal
Cronin. (N.T. 3/5 43:18-21). After Trooper Henneman read the defendant his Miranda rights
and concluded taking photographs, the defendant began to speak to Trooper Tallman and
Corporal Cronin. (N.T. 3/5 43:18-24). He asked the officers questions about what was going to
happen to him, as well as the criminal complaint; specifically he was concerned about the
allegation that the murder was premeditated. (N.T. 3/5 44:1-7). In response, Corporal Cronin
told him the outcome was uncertain, because the defendant had told them earlier that he blacked
out. (N.T. 3/5 44:14-16). The defendant then proceeded to describe beating the victim in detail.
(N.T. 3/5 44:21-45:5). He also asked the officers about the possible sentence he faced. (N.T. 3/5
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45:24-46:1). At no point during this exchange did the officers induce the defendant to speak; he
4
readily volunteered to do so. (N.T. 3/5 45:12-16).
On March 12, 2009, the defendant was transported from Cumberland County Prison to
his preliminary hearing. (N.T. 3/5 46:5-7). Trooper Tallman testified that the defendant initiated
conversation with him, as was the case on his other encounters with the defendant. (N.T. 3/5
46:14-15). The defendant said nothing pertaining to the victim’s death, but Trooper Tallman
recalled the defendant speaking about requesting a friend to destroy a car he had in New Jersey.
(N.T. 3/5 46:8-13).
The day after the preliminary hearing, Trooper Tallman executed a search warrant on the
defendant for the purpose of obtaining two vials of the defendant’s blood. The police sought the
blood sample in order to perform DNA analysis on the blood spots found on the evidence seized
from the defendant’s home on February 9, 2009.
I.SUPPRESSION ISSUES
The defendant seeks the suppression of the confession he made to police on February 8-9,
2009, on the basis that it is the product of an unlawful custodial interrogation. Miranda warnings
are only required in a custodial interrogation setting. See, e.g., Commonwealth v. Housman, 986
A.2d 822, 839 (Pa. 2009) (citing Oregon v. Mathiason, 429 U.S. 492, 494 (1977)). The test for
whether a criminal defendant is subjected to custodial interrogation necessitating Miranda
warnings is whether the defendant is “physically deprived of his freedom 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 such interrogation.” Commonwealth v. Chacko, 500 Pa. 571, 577, 459
4
Trooper Rodney Fink executed another search warrant on the defendant on February 11, 2009, again for the
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A.2d 311, 314 (1983). Custodial interrogation does not require police to make or intend to make
a formal arrest. See, e.g., Commonwealth v. Brown, 473 Pa. 562, 570, 375 A.2d 1260, 1264
(1977) (citing Commonwealth v. Fisher, 466 Pa. 216, 221, 352 A.2d 26, 28 (1976)). Generally,
Miranda warnings are not required for an interviewee until they are considered a suspect or “one
upon whom the investigation centered or focused to the possible exclusion of others.”
Commonwealth v. Hanna, 267 Pa.Super. 15, 18, 405 A.2d 1280, 1281 (1979).
The record before the court falls short of establishing a custodial interrogation. The
defendant voluntarily agreed to give Trooper Tallman and Corporal Cronin an interview at the
state police barracks. In the interview room, the defendant’s path to the doorway was not
blocked. Throughout his time with Trooper Tallman and Corporal Cronin that night, the
defendant was very eager to speak. Nearly every time the defendant mentioned leaving, he
continued his conversation with the officers without prompt. After the defendant returned to the
police station with Trooper Tallman and Corporal Cronin from McDonald’s, he again asked to
go home. This time, however, it took minimal prompting from Corporal Cronin, who asked for
the defendant’s help for an additional fifteen minutes. Again, the defendant readily obliged.
It is also worth noting that under the rules of evidence, the defendant had the opportunity
to testify as to the custodial nature of his interview with the police, without becoming subject to
cross-examination as to other issues in the case. Pa.R.E. 104(d). His failure to do so weighs in
favor of the uncontroverted testimony offered by the Commonwealth. The uncontradicted
testimony on the record demonstrates the defendant’s eagerness to assist the police in their
investigation. It follows that the defendant was with Trooper Tallman and Corporal Cronin on
purpose of documenting his injuries.
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his own free will and accord, and the encounter was not custodial. The defendant was one of six
persons of interest interviewed at the state police barracks in connection with the murder. Under
the rule in Chacko, it was not necessary for the officers to read the defendant his Miranda rights.
Next, the defendant argues that his confession to Trooper Tallman and Corporal Cronin
was not voluntarily made and should therefore be suppressed. The constitutional validity of a
confession is determined by its voluntariness. See, e.g., Commonwealth v. Nester, 551 Pa. 157,
162-63, 709 A.2d 879, 882 (1998). The voluntariness of a confession is determined by the
totality of the circumstances surrounding it. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 285-
86 (1991). Relevant factors include “the duration and means of the interrogation; the physical
and psychological state of the accused; the conditions attendant to the detention; the attitude of
the interrogator; and any and all other factors that could drain a person's ability to withstand
suggestion and coercion.” Nester, 551 Pa. at 164, 709 A.2d at 882 (citing Commonwealth v.
Jones, 546 Pa. 161, 178, 683 A.2d 1181, 1189 (1996)).
In the case sub judice, the only factor weighing against the otherwise inescapable
conclusion that the defendant’s confession was voluntary is the length of time which he spent
with Trooper Tallman and Corporal Cronin. This alone, however, is insufficient to render the
defendant’s confession constitutionally defective, as we have concluded that spending this time
with the police was the product of the defendant’s own free choice. Although the defendant
mentioned growing tired at several points throughout his interview, both Trooper Tallman and
Corporal Cronin testified to observing none of the typical indicia of fatigue in the defendant.
Throughout his time at the state police barracks, the defendant was provided with drinks,
cigarettes, bathroom breaks, and even a meal at a nearby McDonald’s restaurant. The officers’
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tone with the defendant was low-key throughout the entire interview. The defendant was more
than eager to speak with them. At the few times the defendant would comment about being tired
or wrapping up the interview, he would continue speaking on his own. At the single point it took
minimal prompting from Corporal Cronin for the defendant to stay and continue the interview,
the defendant stayed well beyond the ten minutes to which he agreed.
Again, the Commonwealth’s testimony with regard to the voluntariness of the
defendant’s confession is uncontroverted. As previously noted, the rules of evidence give the
defendant the opportunity to offer opposing testimony as to both the noncustodial nature of his
interview and the voluntariness of his confession to the police. Pa.R.E. 104(d) (“The accused
does not, by testifying upon a preliminary matter, become subject to cross-examination as to
other issues in the case.”). He offered contrary testimony on neither point.
While it is true that after returning from McDonald’s, the form of the questions the
officers asked the defendant became more pointed, this alone is insufficient to conclude that the
defendant’s confession was not voluntary. The officers’ tone in addressing the defendant
remained calm, and Corporal Cronin described his demeanor toward the defendant at the time of
his confession as paternal. Throughout his interview with the police, the defendant was free to
leave, and his comments at the conclusion of the interview make it clear that the defendant
wanted to confess his wrongdoing to the police.
At this point, Corporal Cronin’s testimony bears repeating: “At the risk of sounding glib,
I think if we would have told [the defendant] to be quiet, he would not have listened to us.”
(N.T. 3/25 94:2-4). “[T]his young man engaged us actively. He was proactively talking to us.
… But he was equally eager to be there and speak with us.” (N.T. 5/21 49:15-18). It is clear
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from the record before us that the defendant’s decision to stay and speak with the police for such
a long time was driven largely by his own need to confess. Miranda and the Fifth Amendment
were not intended to create a graveyard placing otherwise voluntarily-given, incriminating
statements beyond the reach of police and prosecutors.
The defendant also seeks suppression of his statements made to police on February 10,
2009 at Cumberland County Prison, arguing that he did not knowingly, voluntarily, and
intelligently waive his Miranda rights. This argument is without merit. In order to establish a
voluntary waiver of Miranda rights, it must be both the product of the defendant’s free choice
and done with a full understanding of the nature of the rights being waived. See, e.g.,
Commonwealth v. DeJesus, 567 Pa. 415, 429-30, 787 A.2d 394, 402 (2001) (abrograted on other
grounds) (citing Colorado v. Spring, 479 U.S. 564, 572 (1987)). The defendant had already been
given his Miranda rights the night before. He was again given his Miranda warnings
immediately prior to Trooper Henneman taking photographs of his injuries. More importantly,
the defendant’s characterization of the encounter as an interrogation is inaccurate; instead, this is
yet another example of the defendant voluntarily, freely speaking to the police.
Next, the defendant seeks the suppression of other statements made to police officers on
the basis that he was not Mirandized on each occasion. Specifically, he seeks suppression of
statements made to police on five occasions: (1) on February 8, 2009, en route to the state police
barracks for his interview with Trooper Tallman and Corporal Cronin, (2) on February 9, 2009
while in the hallway at the state police barracks after giving the police his confession, (3) on
February 9, 2009 while in a police vehicle outside his and the victim’s home and during the
searches of the both homes and his step mother’s vehicle, (4) on February 9, 2009 after being
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photographed by police officers at Cumberland County Prison, and (5) on March 12, 2009 while
en route to and from his preliminary hearing.
As we have discussed at length above, the defendant was not in custody during his
interview with Trooper Tallman and Corporal Cronin at the state police barracks. At the time of
his interaction with Corporal Cronin in the hallway, the defendant had been read his Miranda
warnings. In order to assert his right to remain silent, he must do so clearly and unequivocally.
Berghuis v. Thompkins, 130 S.Ct. 2250, 2259-60 (2010) (extending the “clear and unequivocal”
standard for the right to counsel applied in Davis v. United States, 512 U.S. 452, 459 (1994) to
the right to remain silent). The defendant’s decision to speak to Corporal Cronin constitutes a
waiver of his right to remain silent, and therefore, there is no sound justification for the
suppression of his statements made in the hallway at the police station.
The defendant also seeks suppression of statements made to Corporal Brandtonies while
the two sat in the same police vehicle around 3:30 a.m. outside the victim’s home. Related to
this, he also seeks the suppression of other statements he made to police as he walked through
the victim’s and his own home. Corporal Brandtonies asked two questions of the defendant over
the course of an hour spent together. Otherwise, the defendant dominated conversation.
Additionally, the uncontroverted testimony before the court makes it abundantly clear that the
decision to assist the police in their searches at the defendant’s and the victim’s homes was a
product of the defendant’s own free choice.
The defendant also seeks suppression of statements made to Trooper Gray, Trooper
Tallman, and Corporal Cronin while search warrants were executed on him at Cumberland
County Prison. The defendant’s reliance on the Supreme Court’s recent ruling in Maryland v.
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Shatzer, 130 S.Ct. 1213 (2010) is inapposite. In Shatzer, the Court held that a criminal defendant
who has exercised his right to counsel may not be subjected to additional interrogation for a
period of fourteen days. Shatzer, 130 S.Ct. at 1223. It is equally true, however, that a criminal
defendant who invokes his right to counsel can waive his protection against interrogation without
a lawyer by “initiat[ing] further communication, exchanges, or conversations with the police.”
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Therefore, while it is undisputed that the
defendant applied for and was granted court-appointed counsel at 7:17 a.m. on February 9, 2009,
this fact alone does not invalidate the exchanges between the defendant and the officers. The
defendant readily engaged the officers, asking them questions about his case and the pending
investigation. His statements were clearly not in the context of an interrogation.
The defendant argues that the evidence seized pursuant to search warrants should be
suppressed as the fruit of the poisonous tree, because the factual basis of these warrants (the
defendant’s statements to police) was obtained in violation of the defendant’s constitutional
rights. He also argues that the search warrants were unconstitutionally vague. As we have
already declined to suppress the defendant’s confession to police, the defendant’s fruit of the
poisonous tree argument is moot. The defendant’s argument that the search warrants used to
seize evidence from his room were unconstitutionally vague similarly lacks merit. The
respective scopes of the search warrants were based largely upon information provided by the
defendant during his interview at the state police barracks on the night of February 8-9, 2009,
and they squarely encompass the items seized. In any event, in the instance of the first warrant
executed upon the defendant’s home, the defendant’s father gave consent to search without a
warrant.
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The defendant also challenges the search of his stepmother’s vehicle, from which the key
to the victim’s vehicle was retrieved. This search was initiated by Susan Hardy’s execution of a
waiver of rights and consent to search form. The defendant assisted the police in retrieving the
key to the victim’s vehicle after the search of Ms. Hardy’s vehicle commenced. In order to have
standing to challenge a search on Fourth Amendment grounds, a defendant must be able to
demonstrate one of the following personal interests:
(1) his presence on the premises at the time of the search and
seizure; (2) a possessory interest in the evidence improperly
seized; (3) that the offense charged include as an essential element
of the prosecution's case, the element of possession at the time of
the contested search and seizure; or, (4) a proprietory [sic] or
possessory interest in the searched premises.
Commonwealth v. Treftz, 465 Pa. 614, 621-22, 351 A.2d 265, 268 (1976) (citing Brown v. United
States, 411 U.S. 223, 229 (1973)). Applying the Trefetz standard, it is clear that the defendant
lacks standing to challenge the search of his step mother’s vehicle. He was not present in the
vehicle at the time of consent, although he did voluntarily enter later to assist police; he had no
legitimate possessory interest in the victim’s car key, recovered from inside the van; the charges
pending against the defendant do not include a possession-based offense; and the defendant
likewise lacked any proprietary or possessory interest in his step mother’s vehicle.
II.CAPITAL DESIGNATION
The defendant also challenges the Commonwealth’s designation of this case as capital.
To successfully challenge the filing of notice of aggravating circumstances, the defendant must
show purposeful abuse by the Commonwealth in doing so. Commonwealth v. Buck, 551 Pa. 184,
191, 709 A.2d 892, 896 (1998). This standard is highly deferential to prosecutorial
decisionmaking, and the Buck court explains its operation as follows:
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[A] valid claim for purposeful abuse exists when the
Commonwealth files an unwarranted notice of aggravating
circumstances. Implicit in the notice requirement is the
presumption that the allegations contained therein are based upon
verifiable facts. It is well-established that the Commonwealth has
no pre-trial burden of proving an aggravating factor. However, the
trial court must be able to ensure that the Commonwealth is not
seeking the death penalty for an improper reason. The nature of the
court's inquiry is focused solely upon whether the case is properly
designated as capital, not whether each aggravating factor alleged
is supported by evidence. We note that, pursuant to 42 Pa.C.S. §
9711(c)(1)(i), the trial court is required to instruct the jury to
consider only aggravating circumstances for which there is some
evidence. Thus, if the Commonwealth files a notice of aggravating
circumstances which includes at least one aggravating factor that
is supported by any evidence, the case is properly framed as a
capital case. Whether any particular aggravating circumstances
should be submitted for the jury's consideration can be determined
by the court before the jury retires to consider a verdict.
Id. (emphasis added). The trial court therefore has two opportunities to examine the
Commonwealth’s assertion of aggravating circumstances. The first is at the pretrial stage, under
the purposeful abuse standard. The second is after the conclusion of the receipt of evidence in
the trial, before the court charges the jury.
Hence, the Commonwealth has asserted two aggravating factors: murder in commission
of a felony and torture. Under the standard in Buck, wherein we consider not individual
aggravating factors, but the case as a whole, the case sub judice is properly designated as a
capital case. In addition to the criminal homicide charges faced by the defendant, he is also
charged with aggravated assault, burglary, criminal trespass, and theft by unlawful taking or
disposition. All of these offenses are felonies of varying degrees. Credible evidence on the
record supports the Notice of Aggravating Circumstances filed by the Commonwealth.
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III. CHANGE OF VENUE OR VENIRE
The defendant has also requested a change of venue or venire pursuant to Pa.R.Crim.P.
584. The standards governing a change of venue or venire are well-settled. A change of venue
is necessary when a fair and impartial jury cannot be empanelled in the county in which the
underlying offense allegedly took place. See, e.g., Commonwealth v. Stevens, 543 Pa. 204, 209,
670 A.2d 623, 625 (1996). The grant or denial of a motion for a change of venue or venire is left
to the sound discretion of the trial court, which is in the best position to gauge the community
atmosphere. See, e.g., Commonwealth v. Pursell, 508 Pa. 212, 220-21, 495 A.2d 183, 187
(1985). Generally, “the only legitimate inquiry is whether any juror formed a fixed opinion of
[the defendant's] guilt or innocence as a result of the pre-trial publicity.” Commonwealth v.
Casper, 481 Pa. 143, 150, 392 A.2d 287, 291 (1978) (quoting Commonwealth v. Kichline, 468
Pa. 265, 274, 361 A.2d 282, 287 (1976). However, the Pennsylvania Supreme Court has noted:
[O]ccasions may arise where the pre-trial publicity is so pervasive
and inflammatory that a defendant's normal burden of
demonstrating actual juror prejudice is obviated. Pre-trial prejudice
is presumed if: (1) the publicity is sensational, inflammatory, and
slanted towards conviction rather than factual and objective; (2)
the publicity reveals the accused's prior criminal record, if any, or
if it refers to confessions, admissions, or reenactments of the crime
by the accused; and (3) the publicity is derived from police and
prosecuting officer reports.
Pursell, 508 Pa. at 221, 495 A.2d at 187. Finally, the pretrial publicity must be “so extensive,
sustained and pervasive without sufficient time between publication and trial for the prejudice to
dissipate, that the community must be deemed to have been saturated with it.” Pursell, 508 Pa.
at 221, 495 A.2d at 188. Applying these factors, the Pursell court concluded that a six-month
“cooling off period” was sufficient to remove any prejudicial effects of news articles that
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disclosed the defendant’s criminal record prior to trial. Pursell, 508 Pa. at 221-22, 495 A.2d at
188. Further, it refused to find that the jury pool was saturated by media coverage of the case
when articles leading up to trial merely traced the procedural history of the case. Pursell, 508
Pa. at 222, 495 A.2d at 188.
After conducting a review of the publicity on the record in this case, we cannot conclude
that it is impossible to empanel a fair and impartial jury in Cumberland County. Several of the
articles submitted do make passing references to the defendant having a criminal record, but
none of them provide specific details. Likewise, a number of the earlier articles about this case
mention the defendant’s confession. Finally, a number of the articles quote a state trooper as
calling the defendant a coward. Nonetheless, the content of the coverage of this case, taken
alone, is insufficient to necessitate a change of venue or venire. As in Pursell, the media
coverage of this case tracked its procedural history, beginning with the initial coverage of the
victim’s murder on February 7, 2009. The dates of the remaining coverage submitted by the
defendant correlates with his preliminary hearing on March 12, 2009, his arraignment on May
14, 2009, and the first part of the hearing on this motion, March 25, 2010. Of the articles
submitted by the defendant, only one was published after May 2009. More than ample time has
passed to dissipate the prejudicial effects, if any, of this coverage.
IV. DEATH PENALTY ISSUES
Next, the defendant challenges the constitutionality of 42 Pa.C.S.A. § 9711 et seq. on
several bases. Specifically, the defendant argues that section 9711 is facially unconstitutional
because it (1) violates the constitutional prohibition against cruel and unusual punishment, (2)
precludes a jury from granting mercy or leniency, (3) fails to require proof beyond a reasonable
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doubt that aggravating circumstances outweigh mitigating circumstances, (4) places the burden
of proof on the defendant to prove mitigating circumstances, (5) violates the constitutional
guarantee of equal protection under the law, and (6) violates the separation of powers doctrine.
In addition, the defendant offers the bald assertion that section 9711 is unconstitutional as
applied to the facts and circumstances of this case.
The United States Supreme Court and the Pennsylvania Supreme Court have already
addressed the questions of law presented in the defendant’s arguments and, in each instance, they
have rejected them. We will briefly summarize. Section 9711 does not violate the constitutional
prohibition against cruel and unusual punishment under the Eighth Amendment to the United
States Constitution. Blystone v. Pennsylvania, 494 U.S. 299, 301 (1990) (upholding section
9711 under the Eighth Amendment); Commonwealth v. Peterkin, 511 Pa. 299, 326 n.18, 513
A.2d 373, 387 n.18 (1986). Similarly, the contention that section 9711 is unconstitutional
because it precludes a jury from granting mercy or leniency has been rejected:
Although it is true that the Pennsylvania death penalty statute does
not allow a jury to avoid imposition of a death sentence through
the exercise of an unbridled discretion to grant mercy or leniency,
the statute permits the defendant to introduce a broad range of
mitigating evidence that can support the finding of one or more
mitigating circumstances which may outweigh the aggravating
circumstances found by the jury. Appeals for mercy and leniency
can be founded upon and made through introduction of evidence
along this broad spectrum of mitigating circumstances.
Peterkin, 511 Pa. at 327-28, 513 A.2d at 387. The defendant’s argument that section 9711 is
constitutionally defective for failing to require proof beyond a reasonable doubt that aggravating
circumstances outweigh mitigating circumstances has also been examined and rejected.
Peterkin, 511 Pa. at 326 n.18, 513 A.2d at 387 n.18. Likewise, the requirement that the
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defendant prove mitigating circumstances by a preponderance of the evidence has withstood
constitutional challenge. Id. An argument identical to defendant’s bald assertion that section
9711 is an unconstitutional violation of equal protection because it creates classes of offenses for
which the death penalty may be imposed has recently been rejected. Commonwealth v. Walter,
600 Pa. 392, 402 n.8, 966 A.2d 560, 566 n.8 (2009).
The defendant’s final constitutional challenge to section 9711 is the bald assertion that it
violates the separation of powers doctrine. Ostensibly, the argument is focused on the General
Assembly’s passage of section 9711, which prevents the sentencing body from exercising
unbridled discretion. Regardless, the defendant’s separation of powers argument is without
merit. In passing section 9711, the General Assembly was acting within the boundaries of the
United States Supreme Court’s landmark decision in Furman v. Georgia, 408 U.S. 238 (1972).
As the Pennsylvania Supreme Court noted, “Furman imposed on the States the responsibility of
drafting sentencing codes which would guide and channel the sentencing authority's discretion
by resorting to the examination of specific factors that argue in favor or against the imposition of
the death penalty.” Commonwealth v. Pursell, 508 Pa. 212, 237-38, 495 A.2d 183, 196 (1985).
See also, Commonwealth v. Smith, 518 Pa. 15, 35, 540 A.2d 246, 256 (1986) (“Our legislature
has painstakingly enacted a comprehensive sentencing scheme for imposing the death penalty
when certain aggravating circumstances accompany the killing. This decision was reasoned and
reasonable, and was within the legislature's prerogative to make.”). The General Assembly has
provided the very guidance demanded by Furman in drafting section 9711, which has withstood
numerous constitutional challenges. See, e.g., Commonwealth v. DeHart, 512 Pa. 235, 263, 516
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A.2d 656, 671 (1986) (“The statute is clearly an appropriate exercise of the legislative function
and in no way impairs this Court's authority to promulgate procedural rules.”).
Finally, the defendant argues that the Commonwealth should be barred from imposing
the death sentence upon him. In support of this contention, the defendant recycles the same
arguments for the unconstitutionality of the death penalty overall. Because we have already
concluded that the Commonwealth’s notice of aggravating circumstances is proper, it follows
that the decision on whether to impose the death penalty rests solely with the trier of fact at the
sentencing phase, following a conviction or a guilty plea. 42 Pa.C.S.A. § 9711(a)(b).
ORDER
rd
AND NOW, this 23 day of August, 2010, following hearing hereon, the omnibus
pretrial motion of the defendant is DENIED.
BY THE COURT,
_______________________________
Kevin A. Hess, P. J.
Matthew P. Smith, Esquire
Chief Deputy District Attorney
John A Abom, Esquire
For the Defendant
:rlm
25
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-CR-0696-2009
:
:
COLTON MATTHEW HARDY :
IN RE: OMNIBUS PRETRIAL MOTION
BEFORE HESS, P.J.
ORDER
rd
AND NOW, this 23 day of August, 2010, following hearing hereon, the omnibus
pretrial motion of the defendant is DENIED.
BY THE COURT,
_______________________________
Kevin A. Hess, P. J.
Matthew P. Smith, Esquire
Chief Deputy District Attorney
John A Abom, Esquire
For the Defendant
:rlm