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HomeMy WebLinkAbout96-0089 CriminalCOMMONWEALTH Ve BRIAN JAMES BARGER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0089 CRIMINAL TERM IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER, J. ORDER OF COURT AND NOW, this 2 ~%ay of August, 1996, upon consideration of Defendant's motion to suppress and the briefs submitted in regard to the matter, following a hearing, and for the reasons stated in the accompanying opinion, it is ORDERED and DIRECTED as follows: (1) The motion as it relates to suppression of any statements made by Defendant to the police during the four meetings occurring on December 27, 1995, December 29, 1995, December 31, 1995, and January 5, 1996~, is DENIED. (2) The motion as it relates to suppression of physical evidence seized is DENIED. BY THE COURT, William I. Gabig, Esq. Assistant District Attorney Scott Allen Certified Legal Intern Office of the District Attorney Gregory B. Abeln, Esq. 37 East Pomfret Street Carlisle, Pa 17013 Attorney for Defendant COMMONWEALTH Ve BRIAN JAMES BARGER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0089 CRIMINAL TERM IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER, J. OPINION and ORDER OF COURT In the present criminal case, Defendant is charged with the murder of Robert Horning, Sr. For disposition at this time is Defendant's motion to suppress statements allegedly made by Defendant and to suppress certain physical evidence seized by police. A hearing on this matter was held on Wednesday, June 12, 1996 and on Monday, ~une 24, 1996. Based upon the evidence presented at the hearing and the briefs submitted by both parties, the following Findings of Fact, Discussion and Order of Court are made and entered. FINDINGS OF FACT On December 27, 1995, at approximately 6:05 a.m., Robert Horning, Sr., was shot and killed.~ Detective Kenny R. Johnson of the Middlesex Township Police Department determined that Defendant, Brian James Barger, was someone to be investigated, primarily due ~ Hearing, Commonwealth of Pennsylvania v. Barger, No. 96- 0089 Criminal Term, June 12, 1996, N.T. 53 (hereinafter Vol. I, N.T. __) . NO. 96-0089 CRIMINAL TERM to his involvement with the Victim's wife.2 Defendant's first encounter with the police occurred on the day of the alleged murder, December 27, 1995.3 At approximately 2:30 p.m., Detective Johnson and Sergeant William Goodhart, also of the Middlesex Township Police Department,4 arrived at the Defendant's residence at 501 Breezewood Court in Mechanicsburg, Pennsylvania.s Neither officer was in uniform,6 and they arrived in an unmarked car.7 The officers informed Defendant that the purpose of their visit related to their investigation of the shooting of Mr. Horning.8 The officers then asked Defendant if he would come to the township's police station to talk to them.9 Defendant agreed to come to the station in his own car, and the officers followed him in their vehicle.~° Upon arrival at the station, the Defendant, Detective Johnson, 2 Hearing, Commonwealth of Pennsylvania v. Barger, No. 96- 0089 Criminal Term, June 24, 1996, N.T. 128 (hereinafter Vol. II, N.T. __). 3 Vol. I, N.T. 36; see also Commw. Exhibit 7. 4 Vol. I, N.T. 36. s Vol. I, N.T. 37. 6 Vol. I, N.T. 36. 7 Vol. I, N.T. 38. 8 Id. 9 Vol. I, N.T. 37. ~0 Vol. I, N.T. 38. 2 NO. 96-0089 CRIMINAL TERM and Sergeant Goodhart went into an interview room. At approximately 3:40 p.m., Detective Johnson read Defendant his Miranda rights from a form which Defendant then signed.~ The door to the interview room remained unlocked throughout the interview.~2 At no point during this encounter did the officers frisk Defendant or place their hands on him in any manner, handcuff him or consider him to be in custody.~3 The officers reminded Defendant that he was not under arrest and that his presence at the station was in response to a request.TM During the interview, Detective Johnson asked Defendant where he was when he "found out" about Mr. Horning, to which Defendant made the following response: I worked till midnight at Master Mix... I went to Sheetz on Gettysburg Road and got 2 cups of coffee. Then I went to Upper Allen Ambulance and met [the victim's wife]. She was working there. I stayed until 2:00 a.m., they got a call to Penn State and I left and went home. Got home about 2:30 a.m. - not sure, read the mail and watched the weather channel. I went to bed around 3:00 a.m... ... I never left the apartment. Vol. I, N.T. 40; Vol. I, N.T. 43. Vol. I, N.T. 39. Vol. I, N.T. 43. see also Commw. Exhibit 4. NO. 96-0089 CRIMINAL TERM I was woke up the phone ringing, it was Tina. She was upset and hard to understand. She said that Bob was dead .... ~ Also during the interview, Defendant was asked to submit to, and consented to submit to, an absorption test, to provide fingerprints and to be photographed.~6 At the conclusion of the interview, Defendant gave Detective Johnson and Sergeant Goodhart written permission to search both his truck and his residence.~7 Defendant drove himself back to his residence and Detective Johnson and Sergeant Goodhart followed him. At approximately 7:45 p.m., the officers searched Defendant's residence~a and recovered one 12- gauge spent round or casing from the master bedroom that appeared to be the same type of ammunition item found at the crime scene.~9 Several other ~2-gauge shotgun shells were recovered inside the residence.2° Defendant had previously denied ever owning a 12-gauge See Commw. Exhibit 5. ~6 Vol. II, N.T. 135-36, 138. Defendant was informed that he did not have to submit to any of these procedures. Vol. II, N.T. 135. ~7 Vol. I, N.T. 45; see also Commw. Exhibit 6. Defendant was not explicitly advised of his right to refuse to give his consent to the search. Vol. I, N.T. 46. ~a Vol. I, N.T. 51. p.m. Vol. II, N.T. 140. The search ended at approximately 8:15 Vol. I, N.T. 50-51; Vol. II, N.T. 32. Vol. I, N.T. 51. 4 NO. 96-0089 CRIMINAL TERM shotgun2~ and said that the shells must have belonged to his father.22 A total of four hours were spent interviewing Defendant.23 The next contact Defendant had with the police was on December 29, 1995 at the Carlisle State Police Barracks.24 Defendant arrived at the barracks at approximately 9:00 a.m., accompanied by the victim's wife.2s The purpose of this meeting was for Defendant to take a polygraph examination.26 Defendant and Ms. Horning drove Defendant's vehicle and followed Trooper Leonard Lander and Detective Johnson from the Carlisle barracks to the Harrisburg State Police Barracks, the site of the polygraph examination.27 At the Harrisburg barracks Defendant consented to the examination and signed a consent form.~8 At no time was Defendant handcuffed or frisked~9 or told that he was under arrest.3° Trooper Lacizicki, the polygraph examiner, administered the test to Vol. I, N.T. 51. Vol. I, N.T. 52; see also Commw. Exhibit 6. Vol. II, N.T. 139. Vol. I, N.T. 54. Vol. I, N.T. 54. Id. Id. See Commw. Exhibit 9. Vol. I, N.T. 56. Vol. I, N.T. 58. 5 NO. 96-0089 CRIMINAL TERM Defendant from approximately 10:55 a.m. until 4:30 p.m., at which time Defendant indicated that he had to leave to go to work.3~ In the examiner's opinion, the polygraph results indicated, and Defendant was informed that day, that Defendant had failed the test.32 Defendant informed Detective Johnson and Trooper Lander that he believed the test indicated deception because the victim was a personal friend of his; according to Defendant, he had been asked if he had been involved directly in the murder and it upset him.~ After the interview, Detective Johnson gave Defendant a ride home.34 On December 31, 1995, the Defendant himself initiated a third meeting with the police.3s Detective Johnson had made previous arrangements t9 meet the victim's wife at the Middlesex Township Police Station to interview her regarding the homicide investigation.~6 Defendant accompanied Ms. Horning to the station and, on his own initiative, said that he wanted to talk to 3~ Vol. II, N.T. 146. ~2 Vol. II, N.T. 150. Vol. I, N.T. 61. Detective Johnson offered to provide Defendant with a second polygraph examination in order to avoid any emotional questions. Id. at 62. Vol. I, N.T. 57. Vol. II, N.T. 147-48. Vol. I, N.T. 58-59. 6 NO. 96-0089 CRIMINAL TERM Detective Johnson and Trooper Lander.37 The detective and trooper took Defendant into a room separate from Ms. Horning's location.38 Defendant informed them that he had owned a 12-gauge shotgun but that it had been stolen.~9 The officers did not read Defendant his rights,4° and the meeting lasted approximately five minutes.4~ The fourth and final contact was on January 5, 1995 at the Carlisle State Police Barracks.~2 The purpose of this meeting was for a second polygraph test.4~ Defendant drove himself to the Carlisle barracks.44 Upon arrival, Defendant was not handcuffed, searched, patted down or in any way taken into custody.4s Trooper Terry McElheny, who administered the polygraph examination, read Defendant his rights at approximately 10:45 a.m.46 During the interview, Defendant was at liberty to take any needed breaks and 37 38 39 40 41 42 Id. Vol. I, N.T. 60. Id. see also Commw. Exhibits 11, 13. Vol. I, N.T. 60. Vol. II, N.T. 149. Vol. I, N.T. 9. This meeting was the result of a January 3, 1996 phone call by Trooper Lander to Defendant asking him to come to the Carlisle State Police Barracks on January 5, 1996 at 9:00 a.m. for a polygraph examination. 4~ The Defendant had requested this second polygraph test upon the premise that he felt the initial exam on December 29, 1995, had yielded incorrect results. Vol. II, N.T. 8. Vol. II, N.T. 10. Vol. II, N.T. 11. Vol. II, N.T. 18. NO. 96-0089 CRIMINAL TERM allowed to go "wherever."47 The test was completed at approximately 12:45 p.m.48 Following the examination, the results were scored and then reviewed with Defendant.~9 During the post-test interview, Detective Johnson and Trooper Lander joined in the discussion,so Trooper McElheny continued to participate, intermittently, in the discussion with the Defendant and the other officers until approximately 6:00 p.m.s~ Throughout the post-test discussion, the Defendant was offered, but refused, a lunch break,s2 A dinner break was also taken sometime between 6:00 p.m. and 8:00 p.m.53 The officers ate a meal from McDonald's and, while the Defendant had not requested and did not immediately eat dinner, sometime later he did eat a meal..provided by Detective Johnson.5" The Defendant was at liberty to leave and move about the station at all times,s~ At no time did the Defendant ask to leave, request an attorney or Id. Vol. I, N.T. 14. Vol. I, N.T. 16. Vol. I, N.T. 16, 24. Vol. I, N.T. 18. Vol. II, N.T. 24. Id. Vol. II, N.T. 25. Vol. II, N.T. 26. NO. 96-0089 CRIMINAL TERM indicate that he wanted to cease the interview.~6 During the post-exam interview Defendant, for the first time, made clearly inculpatory statements about his knowledge of the killing of Mr. Horning.~7 The officers also discussed with the Defendant results of portions of the investigation which contradicted information the Defendant had previously given to the police.~8 At approximately 8:00 p.m., the Defendant admitted that he had shot Mr. Horning.~9 The officers then asked Defendant to start from the beginning and in his own words in narrative form give his version of events.6° The Defendant began relating this narrative at approximately 9:00 p.m.6~ Following this recitation of events by Defendant, Detective Johnson and Trooper Lander asked Defendant if he would provide a tape-recorded statement.62 Defendant agreed to provide this statement, which began at 10:00 p.m.63 Prior to receiving the statement, Detective Johnson reminded the Defendant of his constitutional rights: Id. Vol. II, N.T. 20, 174. Vol. II, N.T. 35. Vol. II, N.T. 23. Vol. II, N.T. 22, 46. Vol. II, N.T. 23. Vol. II, N.T. 47. Vol. II, N.T. 47; see Commw. Exhibit 17. 9 NO. 96-0089 CRIMINAL TERM JOHNSON: Ok, today is um January 5th, 1996, and the time is exactly 2200 hours. Brian, um earlier today while we were talking to you and interviewing you, um Trooper TERRY MCELHENY from the Pa. State Police uh he read you your rights. Is that correct. BARGER: That's correct. JOHNSON: Which you did state that you understood those rights at that time. BARGER: Yes I did. JOHNSON: OK, And now you told him at that time you were willing to talk to us correct. BARGER: Yes. JOHNSON: Alright. Ok um we just wanted to verify that you were informed of your rights. We want to talk to you about the incident that occurred at Country Manor. Ok where BOB HORNING was shot on the morning of December 27th 1995. OK. We want to talk to you about the ~vent which began prior to that actual shooting and what lead [sic] up to that. OK.64 In the taped statement, Defendant again admitted that he shot Mr. Horning.6s At the conclusion of the tape-recorded discussion, Defendant confirmed that the statement had been given of his own free will, without any promises or threats having been made.66 The taped statement was concluded at approximately 10:12 p.m.67 Immediately after the taped confession was given, the Defendant asked if he could go home and come back the next See Commw. Exhibit 17. Id. Id. Vol. II, N.T. 118. 10 NO. 96-0089 CRIMINAL TERM morning.6B This was the first time that day that Defendant indicated he wished to leave the barracks.69 The officers then informed the Defendant that he was now under arrest and not free to leave.7° The Defendant was formally placed under arrest at 10:30 p.m.71 The Defendant was then transported to District Justice Paula Correal's Office in Carlisle.72 At the district justice's office, the Defendant placed a phone call, purportedly to the victim's wife, in which he stated: "... [T]his is Brian. I'm at the district justice office. I want to be the one to tell you, I shot Bob. [Another individual] was in on it. I love you. Bye.''73 Police apparently thereafter went to a location where Defendant had indicated the shotgun involved in the killing could be found.TM A shotgun was apparently seized at that location.75 At the suppression hearing, the Defendant did not testify. He presented one witness, Dr. Stephen Overcash, a clinical psychologist, whom the court accepted as an expert witness in the ~B Vol. II, N.T. 119. ~9 Id. 7o Id. 7~ Vol. II, N.T. 118. 72 Vol. II, N.T. 120. 73 Vol. II, N.T. 121. See Commw. Exhibit 19; Defendant's Motion To Exclude Evidence, paragraph 7. 75 Id. 11 NO. 96-0089 CRIMINAL TERM field of clinical psychology.TM On May 8, 1996, Dr. Overcash had conducted an interview with the Defendant in the Cumberland County Prison.77 The purpose of the interview was to test the Defendant's current cognitive functioning level, and his psychological strengths and weaknesses, and to determine the possible existence of any neurological or neuropsychological deficits.TM Dr. Overcash determined that the Defendant possessed a sixth-grade reading level~9 and had a full scale IQ of 83, which is within the borderline range of mental retardation.8° Additionally, Dr. Overcash diagnosed the Defendant as having Generalized Anxiety Disorder and Dependent Personality Disorder with prominent schizoid personality traits.8~ The witness testified that the Defendant would be likely to provide unreliable, conflicting information on a regular basis and would have a difficult time understanding information given to him.82 Dr. Overcash testified that, in accordance with the Defendant's mental ability and defects, the Defendant could function well only in a simple one- and/or two-step job.83 The Vol. I, N.T. 70. Vol. I, N.T. 72; Vol. II, N.T. 49. Vol. I, N.T. 70. See Defendant's Exhibit 2. Vol. II, N.T. 51. See Defendant's Exhibit 2. Vol. II, N.T. 67, 70. Vol. II, N.T. 76. 12 NO. 96-0089 CRIMINAL TERM witness indicated the Defendant would be able to do this type of simple job because it would not involve abstract thinking, word finding and judgment,s4 Regarding the Defendant's memory capacity, Dr. Overcash testified the Defendant had normal memory for recent events and was able to recall events from the past.8s The Commonwealth presented testimony regarding Defendant's behavior and social interactions with other people. Detective Johnson testified that, throughout the course of dealings he had had with the Defendant, the Defendant communicated in a rational manner, comprehending and responding appropriately to questions asked.86 The Defendant was also able to coordinate times and locations for scheduled meetings."7 The fire chief of the New Kingstown Fire Company, James Hall, also testified at the suppression hearing as a witness for the Commonwealth."" Chief Hall had known the Defendant for at least ten years and had supervised him in his work for the New Kingstown Fire Company.s9 Chief Hall testified that the Defendant was very involved in the fire company and had risen to the level of, and Vol. II, N.T. 76. Id. Vol. II, N.T. 84. Vol. II, N.T. 183. Id. Vol. II, N.T. 186. Vol. II, N.T. 187. 13 NO. 96-0089 CRIMINAL TERM served as, captain (third in the chain of command from the fire chief).9° The Defendant also served as a driver for the company and was responsible for a $250,000 fire truck and personnel on board.9~ In his role as captain, the Defendant was at times in charge of emergency scenes.92 Pursuant to his work with the fire company, the Defendant completed numerous training and certification programs.93 The chief of the Silver Spring Ambulance Company, Nancy Miller, also testified at the suppression hearing as a witness for the Commonwealth.94 The Defendant was involved with the company as a driver and at one time held the position of a director of the organization.9s The Defendant coordinated and conducted training programs in radio usage and was placed in charge of purchasing a new ambulance for the company.96 In describing Defendant's performance at the company, Chief Miller testified that Defendant was able to make decisions under stress and was overall an "excellent member."97 In the portion of his suppression motion relating to Vol. II, N.T. 188-89. Vol. II, N.T. 189. Vol. II, N.T. 190. Id. Vol. II, N.T. 193. Vol. II, N.T. 194. Id. Vol. II, N.T. 197. 14 NO. 96-0089 CRIMINAL TERM statements allegedly made by him to the police, the Defendant has made the following contentions: 3. The Defendant was subjected to numerous police interrogation proceedings, all of ~ich were conducted without the presence of counsel, and as a result, the statements made to the police were disjointed and contradictory in nature. 4. Due to the many hours of intense interrogation by many different police officers the statements obtained from him were not voluntarily given and were not the product of his free will. 5. Ail statements given by the Defendant were further obtained in violation of his Constitutional and statutory rights, and introduction at trial of any of these statements would be in violation of the Defendant's rights to counsel, to be free from unreasonable search and seizures, against selfTincrimination, and due process under the United States Constitution and the law and the Constitution of the Commonwealth of Pennsylvania.98 In the portion of his suppression motion relating to physical evidence seized, Defendant has made the following contentions: 6. Based upon the Defendant's statements, the police conducted a search of the Defendant's residence at 501 Breezewood Court, Mechanicsburg, PA, and seized certain items, including but not limited to, shotgun shells. 7. On or about January 5, 1996, based upon statements that were made by the Defendant, a search was conducted at 146 Clouser Road, Mechanicsburg, PA, wherein items were seized by the police, including, but not limited to, a twelve gauge shotgun. 8. Any physical evidence obtained from the ~ See Defendant's Motion To Suppress Statements, paragraphs 3-5. 15 NO. 96-0089 CRIMINAL TERM residences of the Defendant, family, and friends was the product of, and tainted by, the illegal custodial statements given to the police by the Defendant, and therefore was illegally obtained. 9. Admission of the physical evidence seized by the police violates the Defendant's rights under the Fourth and Fourteenth Amendments of the U.S. Constitution, Article I, §8 of the Pennsylvania Constitution, as well as the Rules of Criminal Procedure.99 The court will address the Defendant's requests for relief seriatim. DISCUSSION Suppression of statements. Encounters with the police may be classified as mere encounters, non-custodial detentions, custodial detentions and formal arrests.~°° Before an individual is subjected to a custodial interrogation, he or she must make a knowing and intelligent waiver of his or her privilege against self- incrimination and right to counsel after adequate warning as to those rights.TM The United States Supreme Court explained in Beckwith v. United States, 425 U.S. 341, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976), that [t]he narrow issue before the Court in Miranda was presented very precisely in the opening paragraph of that opinion - "the admissibility of statements obtained from an individual who See Defendant's Motion To Exclude Evidence, paragraphs 6-9. ~oo Commonwealth v. Ellis, 379 Pa. Super. 337, 354, 549 A.2d 1323, 1331 (1988). ~o~ Commonwealth v. Williams, 539 Pa. 61, 74, 650 A.2d 420, 427 (1994), citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 16 NO. 96-0089 CRIMINAL TERM is subjected to custodial police interrogation." The Court concluded that compulsion is "inherent in custodial surroundings," and, consequently, that special safeguards were required in the case of "incommunicado interrogations of individuals in a police dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights." In subsequent decisions, the Court specifically stressed that it was the custodial nature of the interrogation which triggered the necessity for adherence to the specific requirements of its Miranda holding.~°2 Police detentions become "custodial" only when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest.~°3 The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he or she is physically deprived of his or her freedom in any significant way or is placed in a situation in which he or she reasonably believes that his or her freedom of action or movement is restricted by such interrogation.~°4 Among the factors which may be considered in determining whether a detention is custodial are: the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention ~o2 Commonwealth v. Ellis, 379 Pa. Super. 337, 350-51, 549 A.2d 1323, 1329 (1988), quoting Beckwith v. United States, 425 U.S. 341, 345-46, 96 S. Ct. 1612, 1615-16, 48 L. Ed. 2d 1, 7 (1976). Id. at 356, 549 A.2d at 1332. ~o~ Commonwealth v. Reed, 400 Pa. Super. 207, 215, 583 A.2d 459, 463 (1990). 17 NO. 96-0089 CRIMINAL TERM (public or private); whether the suspect was transported against his or her will (how far, why); the method of the detention (restraints utilized); the show, threat or use of force; and the investigative methods used to confirm or dispel suspicions.~°s Finally, we note the following admonition provided by the United States Supreme Court in California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983): Although the circumstances of each case must certainly influence a determination of whether a suspect is "in custody" for purposes of receiving Miranda protection, the ultimateinquiry is simply whether there is a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.~°6 In the instant case, the Defendant had a total of four encounters wit~ the police. A careful review of the evidence at the suppression hearing discloses ample support for a finding, which we make, that Defendant was not in custody during any of these encounters. In this regard, we will examine each encounter separately and in chronological order. In the first encounter, the police arrived at Defendant's residence in civilian clothes and driving an unmarked car. The police sought Defendant's permission before questioning him at the station and informed Defendant that he was not under arrest. At no ~os Commonwealth v. Ellis, 379 Pa. Super. 337, 356-57, 549 A.2d 1323, 1332 (1988). ~o6 Id. at 357, 549 A.2d at 1333, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983). 18 NO. 96-0089 CRIMINAL TERM point did the officers behave as if Defendant were in custody, by frisking him or otherwise attempting to restrain him. The door to the interview room was not locked. At no time during the interview was Defendant physically deprived of his freedom in any significant way or placed in a situation in which he could reasonably have believed that his freedom of action or movement was restricted. Taken as a whole, the record also supports a finding that Defendant's second meeting with the police was non-custodial in nature. First, Defendant was not transported to the police station by others, but rather drove himself to the barracks. Second, Defendant was at liberty to cease the interview at any time. At no point during this interview did the police attempt to restrain Defendant or to prevent him from leaving. Defendant's third meeting with the police did not at any point reach the functional equivalent of an arrest. Defendant initiated this meeting with the authorities. He drove himself to the station, asked to speak with the police, and spoke to the officers for approximately five minutes before departing of his own volition. Finally, Defendant's fourth and final meeting with the police remained non-custodial in nature throughout the entire encounter until Defendant was told that he was under arrest and no longer free to leave. First, Defendant drove himself to the barracks. Second, Defendant voluntarily submitted to the polygraph, which had been scheduled at Defendant's request. And, third, during both the polygraph and the post-test interview, Defendant was offered 19 NO. 96-0089 CRIMINAL TERM several breaks and was at liberty to move around the barracks as he pleased. Accordingly, the Court is of the view that any statements acquired during the aforesaid interviews were not obtained under custodial circumstances. Assuming arguendo that Defendant was subjected to a period or periods of custodial interrogation, the Court believes that the Miranda warnings provided during the course of the investigation were sufficient to protect his rights against compulsory self- incrimination and to an attorney. In this regard, it may be noted initially that Miranda warnings need not be repeated at every stage of interrogation.~°7 Whether a warning must be repeated at a given moment depends upon whether an objective indicia test shows that the prior warning has become stale.~°8 The courts have looked to several such indicators in determining whether the warnings have become stale or remote: (1) the time lapse between the warnings and the complained-of interrogation; (2) whether the complained-of interrogation occurred at the same location as the earlier warnings; (3) whether the same officer gave the warnings and conducted the interrogation; and (4) whether statements, immediately preceded by warnings, significantly differed from statements elicited during the complained-of ~o? Commonwealth v. Benjamin, 346 Pa. Super. 116, 123, 499 A.2d 337, 341 (1985); see also Commonwealth v. Dennis, 451 Pa. 340, 304 A.2d 111 (1973); Commonwealth v. Abrams, 443 Pa. 295, 278 A.2d 902 (1971). ~o~ Commonwealth v. Benjamin, 346 Pa. Super. 116, 123, 499 A.2d 337, 341 (1985). 20 NO. 96-0089 CRIMINAL TERM interrogation.~°9 Applying these factors to the first interview on December 27, 1995, we conclude that the warnings given at the outset of the meeting remained fresh for all subsequent statements made by Defendant. At the start of the interview, Detective Johnson read and explained a form containing the Miranda warnings to Defendant at approximately 3:48 p.m., which Defendant then signed. Detective Johnson then proceeded with the interview in the same room in which the Defendant had been read his rights. The Defendant on this occasion gave his written permission for a search of his residence. The same officers who interviewed the Defendant at the station conducted the search at the residence. In toto, the interview lasted until 7:45 p.m., approximately four hours after the initial and only warning. The participants remained the same and the overall circumstances do not dictate a finding that the warnings given had ceased to be effective. The second meeting, on December 29, 1995 involved the administration of the first polygraph test. Prior to the examination, the trooper administering the test read and explained a polygraph warning and consent form to Defendant, which included a recitation of Miranda warnings. The Defendant then signed the form, acknowledging his understanding of the rights and his waiver of those rights. Immediately following the exam a discussion ensued among Defendant, Detective Johnson, and Trooper Lander. ~o~ Id. at 124, 499 A.2d at 341. 21 NO. 96-0089 CRIMINAL TERM However, the discussion was brief, as Defendant had to leave for work almost immediately after the polygraph. No opportunity or need existed to review again with Defendant his rights on that occasion. At the final meeting on January 5, 1996 at approximately 10:45 a.m., Trooper McElheny again read Defendant his rights. From this point on, all relevant events occurred at the barracks and involved the same two or three officers throughout the entire episode. By this point, Defendant had been informed of and waived his Miranda rights on two prior occasions within the previous ten days. Following the polygraph exam, which apparently lasted about five hours, discussions ensued among Defendant, Trooper McElheny, Detective Johnson, and Trooper Lander. At approximately 10:00 p.m., prior to Defendant's giving his taped statement, Detective Johnson again reminded Defendant of his Miranda rights. Taken as a whole, the evidence does not lead to a conclusion that the initial warning on this date had become stale, so that Defendant needed to be reminded of his rights at any time before the police did so. Accordingly, the court is of the view that, even should it be assumed that Defendant was subjected to a period or periods of custodial interrogation, no deficiency existed with respect to the notice provided to him as to his Miranda rights. Defendant also challenges, on the basis of the extent of police interrogation in this case and his alleged mental deficiencies, the validity of his relinquishment of constitutional rights and the voluntariness of resultant allegedly inculpatory 22 NO. 96-0089 CRIMINAL TERM statements. Where the validity of a waiver of Miranda rights is at issue, a resolution of the issue is dependent upon an analysis of whether the waiver was voluntary, knowing and intelligent;~° the voluntariness of a statement is to be ascertained upon a review of all the attendant circumstances.TM Whether a Defendant has made a voluntary, knowing and intelligent waiver of Miranda rights involves a two-fold inquiry: First, the relinquishment of the right must have been voluntary in the sense that it was a product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with the full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and ~he requisite level of comprehension may a Court properly conclude that Miranda rights have been waived.TM In Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 289-90 (1976), our Supreme Court provided the following guidelines for determining whether a confession is voluntary: Although there is no single litmus paper test for determining the voluntariness of a confession, it must establish that the decision to speak was a product of a free and unconstrained choice of its maker .... All attending circumstances surrounding the confession must be considered in this ~o Commonwealth v. Carter, 377 Pa. Super. 93, 102, 546 A.2d 1173, 1177 (1988). ~ Commonwealth v. Kichline, 468 Pa. 265, 279, 361A.2d 282, 289-90 (1976). ~ Commonwealth v. Cephas, 361 Pa. Super. 160, 163, 522 A.2d 63, 65 (1987). 23 NO. 96-0089 CRIMINAL TERM determination. These include: the duration and methods of the interrogation; the length of delay between arrest and arraignment; the conditions of detainment; the attitudes of police toward Defendant; Defendant's physical and psychological state; and all other conditions present which may serve to drain one's power of resistance to suggestion or to undermine one's self-determination. On the issue of the validity of any necessary waiver of Miranda rights in this case, the court is unable to perceive either (a) police conduct amounting to intimidation, coercion or deception, or (b) a lack of awareness on the part of Defendant of the nature of his rights or the consequences of a decision to abandon them. With regard to the conduct of the police, it is not suggested by Defendant that he was subjected to any sort of deception by authorities. Nor does an element of intimidation or coercion suggest itself in their actions during the several encounters with Defendant. In the first contact, which was noncustodial and lasted a little over four hours, the police sought and received Defendant's permission to ask him questions and to search his residence and vehicle; no evidence would support a finding that Defendant was subjected to intense, prolonged questioning designed to wear down his resistance. In the second encounter, which was also noncustodial, the record does not imply that Defendant's submission to the polygraph examination was more than the product of a desire on his part to extricate himself from involvement in the crime under investigation. The third encounter between Defendant and police was initiated by Defendant, was noncustodial in nature, and 24 NO. 96-0089 CRIMINAL TERM consumed about five minutes; the evidence, again, would not support a finding that Defendant was the victim of police conduct of a coercive or intimidating nature. The fourth encounter, noncustodial until Defendant had given a taped statement of an incriminating nature, was precipitated by Defendant's desire to replace negative results of the initial polygraph examination with those of a second examination; again, the evidence cannot be found to indicate that police interrogation rose to the level of physical or mental coercion or intimidation, even if it be assumed that Defendant would be somewhat more susceptible to such tactics due to .his mental condition than the average person would be. With regard to Defendant's capacity to appreciate the nature of rights being abandoned and the consequences of a decision to abandon them, the court believes that his mental state was not so substandard as to warrant an invalidation of such a waiver. Evidence presented on behalf of Defendant in the form of testimony by Dr. Overcash tended to show (and the court accepts as true) that, when examined at prison, Defendant was suffering from elevated levels of stress, generalized anxiety disorder and dependent personality disorder, and that he had a full-scale IQ of 83. Dr. Overcash testified that Defendant was unreliable and prone to supply conflicting information. Evidence presented on behalf of the Commonwealth included testimony of Detective Johnson to the effect that, in all of his discussions with the Defendant, Defendant was able to communicate well, to comprehend questions and to respond rationally. The 25 NO. 96-0089 CRIMINAL TERM Commonwealth's evidence further showed that, in his role as captain of the New Kingstown Fire Company, Defendant had demonstrated a capacity to react appropriately in stressful, emergency situations. Finally, Defendant's supervisor at the Silver Spring Ambulance Company, where Defendant was an ambulance driver, testified that Defendant's decision-making skills under stressful conditions were "excellent." On balance, in the court's view, the evidence supports a conclusion that Defendant possessed a level of comprehension sufficient to validly waive Miranda rights. On the issue of the voluntariness of any statements made by Defendant, a review of the factors to be considered in such a determination militates in favor of a finding that the statements were volitional. First, as previously discussed, the duration of the encounters and the method of questioning used by the police were both such that Defendant's statements could not be deemed the result of coercive or intimidating interrogation aimed at wearing down Defendant's resistance. Second, the conditions of Defendant's interviews did not create the type of atmosphere in which Defendant would feel compelled against his will to make inculpatory statements; rather, Defendant, during each encounter, was not subject to detention and was treated humanely. Third, the record is devoid of any evidence suggesting that the police displayed any ill feelings or harshness of attitude toward Defendant. Finally, Defendant's mental state did not, in the court's view, prevent him from making voluntary statements. In this regard, a person's lower-than-average IQ does not automatically 26 NO. 96-0089 CRIMINAL TERM render his or her statements involuntary.TM Instead, the test for determining mental capacity to make admissions is "whether [at the time of his admissions, the defendant's] memory, his thinking processes or his orientation to reality made it unlikely that his admissions were untrue.''~4 The evidence in the present case reveals that, at each encounter, Defendant was alert, functional and able to fully and coherently respond to police questioning. His background was one of a respected and functioning member of society, entrusted with responsibilities by others in emergency situations. The court is unable to find an impairment in Defendant's memory, psychological condition, thinking skills or orientation of sufficient magnitude to render his statements involuntary. For the foregoing reasons, the statements made by Defendant to police are not, in the court's view, subject to suppression as requested by Defendant. Suppression of physical evidence seized. Defendant contends that any physical evidence seized by police was the result of unlawfully obtained statements from him, and must therefore be suppressed. However, as discussed above, the court has not been able to accept the premise that Defendant's statements were illegally acquired. To the extent that Defendant's motion might be construed as ~ See Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980). Id. at 310 n.5, 421 A.2d at 151 n.5. 27 NO. 96-0089 CRIMINAL TERM challenging the consent given by Defendant to search his residence, a brief consideration of the issue will be undertaken. In this regard, it may be noted that, in general, a search or seizure carried out in a residence without a warrant is per se unreasonable.TM In order for consent to an otherwise illegal search to be valid, the consent must be unequivocal, specific and voluntary.TM It is only where there is an intentional relinquishment or abandonment of a known right or privilege that an effective waiver can be found.~7 However, "[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of effective consent."~8 Finally, "it is well established that the consent may not be gained through stealth, deceit, or misrepresentation, and that if such exists this is tantamount to implied coercion.''~9 An examination of the record reveals that Defendant's consent ~$ Coolidge v. New Hampshire, 403 U.S. 443, 91S. Ct. 2022, 29 L. Ed. 2d 564 (1971). ~ Commonwealth v. Gibson, 536 Pa. 123, 132, 638 A.2d 203, 207 (1994). ~8 Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, __, 36 L. Ed. 2d 854, 863 (1973); see also Commonwealth v. Ott, No. 96-0197 Cumberland County, Slip. Opinion, July 18, 1996 (Sheely, P.J.). ~ Commonwealth v. Poteete, 274 Pa. Super. 490, 497, 418 A.2d 513, 516 (1980), quoting Commonwealth v. Wright, 411 Pa. 81, 85-86, 190 A.2d 709, 711 (1963). 28 NO. 96-0089 CRIMINAL TERM to search his residence and vehicle was unequivocal, specific and voluntary. First, Defendant's consent was given clearly and fully in both oral and written form. Second, both the officers' request and the Defendant's consent were specific as to the place to be searched and the purpose of the search. The police specifically sought and received Defendant's express consent to search Defendant's residence and vehicle after informing Defendant of the purpose of the search - the investigation being conducted into Mr. Horning's death. Third, Defendant's consent was not a product of coercion or intimidation; nor, for the reasons discussed previously, did Defendant's psychological state or his mental capacity prevent him from voluntarily waiving his right to refuse to consent to the requested search, in the court's view. In addition, no stealth, deceit, or misrepresentation was involved in the obtaining of Defendant's consent for the search. The police were, to all appearances, entirely straightforward in their dealings with Defendant throughout the investigation. For the foregoing reasons, the physical evidence seized by police is not, in the court's view, subject to suppression as requested by Defendant. ORDER OF COURT AND NOW, this 27th day of August, 1996, upon consideration of Defendant's motion to suppress and the briefs submitted in regard to the matter, following a hearing, and for the reasons stated in the accompanying opinion, it is ORDERED and DIRECTED as follows: (1) The motion as it relates to suppression of any statements 29 NO. 96-0089 CRIMINAL TERM made by Defendant to the police during the four meetings occurring on December 27, 1995, December 29, 1995, December 31, 1995, and January 5, 1996, is DENIED. (2) The motion as it relates to suppression of physical evidence seized is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. William I. Gabig, Esq. Assistant District Attorney Scott Allen Certified Legal Intern Office of the District Attorney Gregory B. Abe~n, Esq. 37 East Pomfret Street Carlisle, Pa 17013 Attorney for Defendant : rc 30