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HomeMy WebLinkAboutCP-21-CR-0002579-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2579-2010 : : CHARGE: 1. CRIMINAL HOMICIDE – STNDRD : MURDER OF THE 1, 2, OR 3 DEGREE; : 2. ROBBERY; : 3. AGGRAVATED ASSAULT; : 4. THEFT BY UNLAWFUL TAKING OR : DISPOSITION; V. : 5. THEFT BY UNLAWFUL TAKING OR : DISPOSITION; : 6. CRIMINAL CONSPIRACY TO THEFT BY : UNLAWFUL TAKING; : 7. CRIMINAL CONSPIRACY TO THEFT BY : UNLAWFUL TAKING; : 8. RECEIVING STOLEN PROPERTY; : 9. RECEIVING STOLEN PROPERTY; : 10. CRIMINAL CONSPIRACY TO RECEIVING : STOLEN PROPERTY; : 11. CRIMINAL CONSPIRACY TO RECEIVING : STOLEN PROPERTY; : 12. CRIMINAL USE OF COMMUNICATION : FACILITY : RAYMOND FRANKLIN PEAKE, III : OTN: L574944-6 : AFFIANT: DET. TIMOTHY LIVELY IN RE: DEFENDANT’S OMNIBUS PRE-TRIAL MOTIONS ORDER OF COURT th AND NOW , this 15 day of August, 2012, upon consideration of the Defendant’s Omnibus Pre-Trial Motion, the Commonwealth’s Answer thereto, and after hearing and consideration of the briefs filed by the parties, 1 IT IS HEREBY ORDERED AND DIRECTED that: 1. Defendant’s Motion to Suppress statements made during his interview at the State Correctional Institute, Camp Hill, on July 30, 2010, and the statements made during the course of the Defendant’s polygraph taken at the North Middleton Township DENIED Police Department on July 30, 2010, are . 2. Defendant’s Motion to Suppress statements made or silence in response to FBI questioning during his transport back to the Cumberland County Prison after a GRANTED proffer session with the United States Attorney is . No statements made during the transport will be admissible. Additionally, any silence by the Defendant in response to FBI questioning during this transport is inadmissible. 3. Defendant’s request that the Court suppress all out of court and in court DENIED identifications of the Defendant is . By the Court, M. L. Ebert, Jr., J. Jaime Keating, Esquire First Assistant District Attorney Christin Mehrtens-Carlin Senior Assistant District Attorney Taylor Andrews, Esquire Court Appointed Counsel for Defendant 2 Gregory B. Abeln, Esquire Co-Court Appointed Counsel for Defendant Court Administrator bas 3 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2579-2010 : : CHARGE: 1. CRIMINAL HOMICIDE – STNDRD : MURDER OF THE 1, 2, OR 3 DEGREE; : 2. ROBBERY; : 3. AGGRAVATED ASSAULT; : 4. THEFT BY UNLAWFUL TAKING OR : DISPOSITION; V. : 5. THEFT BY UNLAWFUL TAKING OR : DISPOSITION; : 6. CRIMINAL CONSPIRACY TO THEFT BY : UNLAWFUL TAKING; : 7. CRIMINAL CONSPIRACY TO THEFT BY : UNLAWFUL TAKING; : 8. RECEIVING STOLEN PROPERTY; : 9. RECEIVING STOLEN PROPERTY; : 10. CRIMINAL CONSPIRACY TO RECEIVING : STOLEN PROPERTY; : 11. CRIMINAL CONSPIRACY TO RECEIVING : STOLEN PROPERTY; : 12. CRIMINAL USE OF COMMUNICATION : FACILITY : RAYMOND FRANKLIN PEAKE, III : OTN: L574944-6 : AFFIANT: DET. TIMOTHY LIVELY IN RE: DEFENDANT’S OMNIBUS PRE-TRIAL MOTION OPINION AND ORDER OF COURT Ebert, J., August 14, 2012 FINDINGS OF FACT 1. On July 30, 2012, Sergeant Anthony Manetta and Detective Timothy Lively reported to the Camp Hill State Prison to conduct an interview of Raymond Franklin Peake (hereinafter “the defendant”). In Re: Suppression Hearing, M.L. Ebert, Jr., J., October 18, November 7, 2011, and January 3, 2012, Notes of Testimony 5 (hereinafter “N.T.__”). 1 2. At the time of the interview, the defendant was employed as a corrections officer at Camp Hill Prison. N.T. 6. 3. He had been a corrections officer since 1998. Commonwealth Exhibit #4, lines 3319 – 3331. Defendant is a high school graduate of Gettysburg High School. Commonwealth Exhibit #4, line 130. Prior to working at Camp Hill Prison, the defendant was in the Marine Corps for 25 years. Commonwealth Exhibit #4, line 134. While in the Marine Corps, the defendant had jobs such as a drill instructor, a recruiter and worked for the State Department. Commonwealth Exhibit #4, line 154. When the defendant retired from the Marine Corps he worked for Shaad Detective Agency and Adams County Prison. Commonwealth Exhibit #4, lines 3299 – 3330. He even secured a CDL. Commonwealth Exhibit #4, line 3310 – 3314. 4. Prior to conducting the interview of the defendant and the interviews of two other employees of Camp Hill Prison, the investigating officers met to discuss the logistics. N.T. 20-21. Sergeant Manetta remembers that the interviews were to be non-custodial in nature. N.T. 21. 5. Sergeant Manetta was dressed in a suit and tie and did not have a weapon on him during the interview. N.T. 6-7. Detective Lively was not in a police uniform and did not have a weapon on him. N.T. 35, 38. 6. The interview was conducted in a ten by ten room with one door that had a small window, and there was a small, high window leading to the outside. Inside the room was a table and three chairs. There were no bars or restraints in the room. N.T. 7, 8. 2 7. The defendant was “administratively called” to an open office area where the correctional officers had their desks. He then came into the interview room. N.T. 8, 35. No one directed his movements; he was not in handcuffs nor was he under any type of official control. N.T. 9. 8. When the defendant entered the interview room, the door was closed and introductions were given where Sergeant Manetta and Detective Lively introduced themselves as investigative police officers. N.T. 10, 26, 65. Detective Lively told the defendant the matter involved a criminal investigation, but no further details were given. N.T. 36. 9. This Court notes that two other interviews were being conducted at the same time, and outside of the defendant’s interview room was a large open area containing desks belonging to other correction officers. Closing the door would cut down on background/outside noises. Additionally, closing the door would help minimize distractions, as the defendant was hard of hearing. 10. Detective Lively read the defendant his Miranda warnings from a written waiver form and explained them verbally to him. The defendant responded he understood and he signed the waiver. N.T. 9, 37; Commonwealth’s Exhibit # 1. 11. The defendant was not told he did not have to talk to the police. N.T. 25. However, Sergeant Manetta told the defendant he was not under arrest and that he and Detective Lively were there just to talk to him. N.T. 26. 3 12. The defendant gave permission to record the interview; however, the introductions and Miranda warnings were not recorded. N.T. 9-10, 66-67. 13. The interviewing officers noticed that the defendant was hard of hearing. N.T. 10. Furthermore, throughout the taped interview, this Court noted at least 15 times where the defendant says “Hm?” as if he did not hear the question. Commonwealth Exhibit #4, lines 703, 1765, 1785, 1823, 1847, 2008, 2065, 2786, 3035, 3098, 3356, 3440, 3637, 3730, 3777. 14. The defendant was not under the influence of alcohol or drugs; he was not experiencing dementia; he had no problems understanding the questions and was able to answer the questions posed to him. N.T. 13. Furthermore, Sergeant Manetta described that the defendant was very clear and conscious in his decision to answer questions. N.T. 13-14. 15. While the tone of the interview was conversational, the defendant was warned not to lie to the police. Additionally, the police did raise their voices either in an attempt for the defendant to better hear and/or occasionally out of frustration because they believed the defendant was not being honest. N.T. 10, 40-41. 16. The defendant was not threatened. N.T. 11. 17. During the end of the interview, Detective Lively left the room and another detective entered. N.T. 11, 38; Commonwealth Exhibit #4. Based on the conversation immediately prior to Detective Lively leaving, the entering detective brought the 4 defendant water from the water fountain. Commonwealth’s Exhibit #4, lines 3377 – 3384; Commonwealth Exhibit #14; N.T. 42. 18. At no point during the interview did the defendant ask to speak with a lawyer. N.T. 11, 46. It was obvious to the interviewing officers that the defendant understood he could limit the conversation and that there were certain things he would not discuss with the officers. N.T. 40, 68, 69. 19. The interview began at 4:11 p.m. (16:11) and ended at 6:11 p.m. (18:11). N.T. 12, 38. 20. The defendant never confessed to killing Todd Getgen. N.T. 79. To the contrary, he was adamant that he did not kill Mr. Getgen. 21. At the conclusion of the interview, Detective Lively placed the defendant under arrest for homicide. N.T. 12. 22. The defendant was then transported to North Middleton Township Police Department for a polygraph. N.T. 13. The polygraph was the defendant’s idea. N.T. 12, 41, 42; Commonwealth’s Exhibit #4, lines 2006, 2172. 23. Corporal Holly Kaehn conducted the polygraph examination of the defendant. N.T. 82-83. Prior to conducting the examination, Corporal Kaehn had the defendant read and sign a Miranda form and a polygraph rights form. N.T. 83, 85, 97. While Corporal Kaehn could not tell the defendant he was free to leave, he was told he had the right to terminate the process at any point in time. N.T. 83. 5 24. The polygraph was conducted in a large office at the North Middleton Police Department. N.T. 84, 96. The room contained a desk and a closet. N.T. 96. Detective Freehling was dressed in a t-shirt and jeans and Corporal Kaehn was wearing professional dress clothes. N.T. 97. 25. The entire tone of the interview was polite. N.T. 97, 98. The entire interview and thst examination started at 8:30 p.m. on July 30 and ended at 12:18 p.m. on July 31. N.T. 87. The defendant was given a bathroom break before the actual examination began. N.T. 87. 26. At the conclusion of the polygraph, the defendant requested an attorney. N.T. 88. No further questions were asked of him by Corporal Kaehn or Detective Les Freehling. N.T. 89, 94. 27. During the interview portion of the polygraph, Corporal Kaehn typed the questions and the defendant’s responses directly as they were asked and given. N.T. 91, 98. Nothing was deliberately done to delay the interview. N.T. 89. 28. On September 20, 2010, the United States Attorney conducted a proffer session with the defendant and his attorney, Kenneth Mann. N.T. 103. The entire proffer session lasted several hours with restroom breaks and lunch. The defendant’s attorney was present the entire time. N.T. 104. 29. The proffer included details about a trucker named Matthews. N.T. 105; Commonwealth’s Exhibit #9, pages 3 – 6. Specifically, “trucker” Matthews at the Petro Mercantile Company truck stop in Carlisle. Commonwealth Exhibit #9, page 3. 6 30. Agent Bruce Doupe transported the defendant from the proffer session back to Cumberland County Prison. N.T. 104. During that transport, Agent Doupe offered the defendant the opportunity to show the FBI the truck stop where the defendant would meet with Matthews. N.T. 105, 109. Without recollecting the defendant’s exact response, Agent Doupe said the defendant made “overtures that we were not going to be able to do it that day.” N.T. 109. 31. The transportation of the defendant was outside the presence of his attorney and he was not advised of his Miranda warnings before being transferred. N.T. 110. 32. On July 24, 2010, three days after the murder, Mr. Mark Ticehurst contacted Detective Lively. N.T. 48. th 33. On July 24, Detective Lively had not identified Raymond Peake as a suspect in the murder. N.T. 48. 34. Mr. Ticehurst told Detective Lively he was at the range the day before the murder on July 20, 2010, between 10 a.m. and 2 p.m. and described a person (now known as the defendant) who was also there with him. N.T. 49. They were the only two people at the range. N.T. 130, 145-46. In talking to Mr. Ticehurst, Detective Lively got a description of the defendant: “white male in his mid 60’s, wearing a t-shirt, olive drab cap and suspenders.” N.T. 49. 35. Mr. Ticehurst noticed that the defendant was shooting an AR-15. N.T. 113. They were shooting in the 100 yard range, about 10 to 12 feet apart. N.T. 131, 132. 7 When Mr. Ticehurst tried talking to the defendant, he did not respond giving Mr. Ticehurst the “distinct impression” the defendant did not want to talk to him. N.T. 132. 36. Mr. Ticehurst also remembers that day because he left the 100 yard range to shoot at the 200 and 300 yard ranges. N.T. 133. As he was sitting at the bench, he noticed or sensed someone behind him. N.T. 133, 145. He turned around to see a man. When Mr. Ticehurst got up and headed toward the parking lot, he saw the man head toward the only other vehicle in the lot. N.T. 134. He thought this behavior was odd. N.T. 148. He was concerned that his car may not be locked and it had important material in it. He wanted to make sure nothing was stolen from his car. N.T. 138. He identified the man as the person who was shooting next to him at the 100 yard range. N.T. 135, 145. While this time Mr. Ticehurst had only seen the man for seconds, there was nothing blocking his view. N.T. 146. 37. Mr. Ticehurst also described the vehicle as a dark-colored, four door jeep Wrangler Unlimited with a bronze star sticker and a combat wounded plate. N.T. 50. This was the only other vehicle in the parking lot. N.T. 134. 38. With this information, Detective Lively was able to trace the Purple Heart license plate, authorized on a Jeep Wrangler. N.T. 51. It came back to the defendant. Detective Lively was then able to access the defendant’s driver’s license picture. N.T.51. 39. Detective Lively took the defendant’s driver’s license picture to Mr. Ticehurst and showed him that picture alone, to determine if this was the person Mr. Ticehurst saw at 8 the range the day before the murder. N.T. 52, 72. The defendant was not, at this time, a suspect in the murder. N.T. 78. Detective Lively was attempting to find other witnesses. N.T. 48-49, 52. 40. Mr. Ticehurst identified the driver’s license picture as the person he saw the day before the murder, without any hesitation. N.T. 54, 141. 41. Detective Lively had not created the photo array prior to showing Mr. Ticehurst the individual driver’s license picture of the defendant. N.T. 70. 42. Detective Lively then created a colored photo array. Based on the age, hair style, report of wearing glasses, and the identification of the defendant by Mr. Ticehurst, Detective Lively looked for specific people who matched the general description. He printed the photographs on 8 ½ x 11 paper and put the defendant’s picture in the middle of the pile. N.T. 44, 72-73. 43. On May 21, 2010, Nathaniel Hosler had his firearm stolen while on the PA Game Lands. N.T. 113. It was a bright day with clear skies. N.T. 114. 44. Mr. Hosler immediately reported the incident to the police and gave them a composite picture of who he thought stole his rifle. He described the man wearing a black vest, a military haircut with gray hair, and the man was shooting an M1A with a Leopold scope on it. N.T. 115, 116. He observed this man for 20 minutes to ½ hour while they were shooting next to each other at the 300 yard range. N.T. 115. They were the only two people shooting at the 300 yard range. N.T. 116. He described the man he saw as “creepy”. N.T. 128. Furthermore, Mr. Hosler had seen this same man 9 st at the range prior to May 21. N.T. 122. He described the man as “standoffish”. N.T. 122. 45. Sometime later, prior to the defendant’s arrest, Mr. Hosler was shown the photo array that Detective Lively created. Mr. Hosler said he was shown those same pictures, but they were on one sheet with six boxes, and the photographs were in black and white. N.T. 118, 123-124. He identified picture #4 from Commonwealth Exhibit #3; N.T. 119. 46. Additionally, Mr. Hosler identified the defendant at the preliminary hearing. N.T. 119. 47. On July 20, 2010, around 10 – 11:00 a.m. Steve Sheaffer and his son Bryce went to the PA Game Lands. N.T. 158, 208. When they arrived, they were the only ones there. N.T. 159. Within minutes of zeroing in their rifles, Steve Sheaffer headed back to his van. N.T. 159. There was a Jeep parked next to his van. N.T. 169, 170. He saw a man (now identified as the defendant). When Mr. Sheaffer greeted him, the man ignored him or didn’t hear him. N.T. 159, 169. 48. Mr. Sheaffer described the vehicle as a red Wrangler or Laredo Jeep with combat wounded veteran plates. N.T. 160. He described the driver as having a high and tight haircut, wearing a vest that said US Marines with a Force Recon at the bottom, and in his early to mid-60’s. N.T. 160,177. He described the defendant’s firearm as a real nice AR-15. N.T. 160. 10 49. Mr. Sheaffer and Bryce were shooting at the 100 range. N.T. 161. The defendant came over and was to their right about 20 – 30 meters away. N.T. 161, 210. Mr. Sheaffer and his son were there for about 10 minutes longer. N.T. 161. The defendant was still there when they left. N.T. 162. 50. Mr. Sheaffer had an uneasy feeling about the defendant so he and his son left. N.T. 162, 174, 209, 222 51. The following evening, Mr. Sheaffer heard about the murder. N.T. 163. A day or two later he went to the police to create a composite. N.T. 163. He subsequently identified the defendant in a black and white photo array. N.T. 164, 178. This photo array had six pictures on one page. N.T. 164-65. Mr. Sheaffer picked the defendant out of the array prior to seeing any pictures of the defendant after the arrest. N.T. 165. 52. Bryce Sheaffer made similar observations of the defendant as his father. N.T 211, 214. He subsequently created a composite sketch and was shown a series of pictures. N.T. 212, 213. Separated from his father, Bryce Sheaffer identified the picture of the defendant. N.T. 213, 231. Bryce did not see or read about the murder on television or in the newspaper. N.T. 214. DISCUSSION A. IDENTIFICATION OF THE DEFENDANT WAS PROPER It is clear that identification testimony by a witness must be suppressed at trial where the identification is so tainted by an improper pretrial identification procedure that it has no basis independent of the improper procedure. See Commonwealth v. 11 Slaughter, 482 Pa. 538, 394 A.2d 453 (1978). “In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable.” Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super. 2011), reargument denied (May 4, 2011), appeal denied, 350 EAL 2011, 2011 WL 3962816 (Pa. Sept. 8, 2011) citing Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super.2003), appeal denied, 578 Pa. 694, 851 A.2d 142 (2004). While the suggestiveness of the identification procedure is one relevant factor in determining the reliability of an identification, “[s]uggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained.” Id. at 394 citing Commonwealth v. McGaghey, 510 Pa. 225, 228, 507 A.2d 357, 359 (1986). Suggestiveness arises when the police employ an identification procedure that emphasizes or singles-out a suspect. Davis, 17 A.3d. at 394 See Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Additionally, it has been held that the use by police of a single photograph of a suspect in securing identification by a witness can constitute an improperly suggestive procedure. Commonwealth v. Jones, 426 A.2d 1167 (Pa. Super. 1981) See Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Where photographs employed in an array possess substantial similarity, the array ordinarily is not unduly suggestive. Commonwealth v. Brown, 512 A.2d 596 (Pa 1986); Commonwealth v. Wheeler, 446 A.2d 892 (Pa. 1982); Commonwealth v. Sutton, 436 A.2d 167 (Pa. 1981). A photographic identification will be suppressed if the array of pictures used has not been preserved. Commonwealth v. Hodge, 369 A.2d 815 (Pa. Super 1977). However, where at least some of the photographs and a general description of the procedure followed 12 are available, there is a definable basis on which to determine whether suggestiveness or coercion was involved. Commonwealth v. Cooper, 482 A.2d 1014 (Pa. Super. 1984). Where there is suggestiveness, the Courts place the burden on the prosecution to establish clearly that the totality of the circumstances affecting the witness’s identification did not involve a substantial likelihood of misidentification. Jones, 426 A.2d at 1170-71. Furthermore, the Commonwealth must show that the subsequent in- court identification resulted from the criminal act itself and not from the suggestive identification procedure. Davis, 17 A.3d at 394 citing Commonwealth v. McGaghey, 507 A.2d at 359. In looking at the totality of the circumstances, the trial court must consider 1) the opportunity the witness had to view the criminal at the time of the crime, 2) the witness's degree of attention, 3) the accuracy of the witness's prior description of the criminal, 4) the level of certainty demonstrated by the witness at the confrontation, and 5) the length of time between the crime and the confrontation. Id. In Davis, the Court found that the police used a suggestive photo array when they showed the witness just three photos, one of which depicted the defendant. The other two pictures consisted of a man whom the witness already knew and a much older, bald man whose appearance differed markedly from the witness’s prior description of the suspect. Finding that the array was suggestive, the Court had to focus upon whether the identifications were nevertheless reliable. The Superior Court adopted the trial court’s findings that immediately after the murder, the witness described the defendant in detail to police as “about 20 years old, black male, dark skin, braids, beige khaki shirt and pants and beige Timberland boots, 13 about 5′5″ [with] a medium build and no facial hair.” Id. The witness testified that he recognized the defendant from around the neighborhood; he named the street where he lived; and described him as having braids. Id. Additionally, the witness's description of the defendant remained unchanged throughout the pendency of this case. Id. The witness also testified that on the night of the murder, he was not impaired by alcohol or drugs and he was several feet from the defendant when he saw the defendant in the lighted dining area of the victim’s residence. Id. at 395. Finally, when the witness identified the defendant for police three years after the murder, he did so quickly and decisively, although the defendant by then had a beard and no braids. Id. Thus, the Court found that despite the suggestive pretrial identification, the record supported the trial court's finding that the identification had an independent basis and was therefore admissible. Id. The facts in Commonwealth v. Jones, supra are most similar to the present case where Detective Lively showed Mr. Ticehurst a single photograph of the defendant. In Jones, the officer showed the witness a single picture of the suspect. Interestingly, the Court never held that showing a single photograph is per se suggestive. Instead, the Court reviewed the factors to determine whether the Commonwealth provided adequate proof to overcome any suggestion of a tainted identification. The witness was present during the robbery and viewed the robber’s face from one foot away for about one minute. 426 A.2d at 1170. The witness recognized the robber but could not recall his name. Id. Shortly after the robbery, police showed the witness a book of photographs, but the witness was unable to identify the robber. Later that day the witness gave the 14 police a name and the police obtained a photo of the defendant. The witness immediately identified the defendant as the robber. Id. Furthermore, at the suppression hearing, the witness showed no hesitancy in identifying the defendant as the robber. The Court held that “[b]ased upon the totality of the circumstances, but especially upon the facts that the witness knew the [defendant] prior to the robbery, viewed him at close range during the incident, and identified him by name to police prior to seeing the single photo, we find no merit in the [defendant's] assertion that [the] identification testimony was tainted and should have been suppressed”. Id. at 1170-71. In the present case, the defendant seeks suppression of the out-of-court identifications of witnesses Nathaniel Hosler, Mark Ticehurst, Steve Sheaffer, and Bryce Sheaffer, and to prevent their in-court identifications of the defendant at trial. The only identification procedure that deserves a suggestiveness analysis is where Detective Lively showed Mr. Ticehurst a single photograph of the defendant. Prior to Mr. Ticehurst speaking to Detective Lively on July 24th, the police had the composite sketches from Mr. Hosler (Commonwealth’s Exhibit #10), Steve Sheaffer (Commonwealth’s Exhibit #11), and Barry McKeel (Commonwealth’s Exhibit #13). Detective Lively may have also had general descriptions of the defendant, his clothing, and his firearms. However, after a thorough review of the suppression hearing th transcript, sufficient evidence exists to find that by July 24 Mr. Ticehurst provided Detective Lively with the only detailed description of the vehicle. This fact is supported by Detective Lively’s testimony that based on Mr. Ticehurst’s description of the 15 defendant’s vehicle, he was able to search and find a DMV photo of the defendant. th Once Mr. Ticehurst identified the DMV photo as the person he saw on July 20. Detective Lively used the photo to establish a non-suggestive photo array that was subsequently shown to Mr. Hosler, Mr. Steve Sheaffer, and Mr. Bryce Sheaffer. In the case upon which the defendant relies, the Court found the showing of a single photograph “in this case” to be deplorable. Commonwealth v. Bradford, 451 A.2d 1035, 1036 (Pa. Super. 1982). In Bradford, the police showed a robbery victim and an eye witness a single photograph of the defendant . Id. The police showed the photograph to the victim two days after the robbery, to which she could not identify the picture. Id. The witness was shown the picture 9 days after the robbery. Id. This witness identified the picture as the robber. There was no explanation as to why the police used Bradford’s picture to show the victim and witness. In the present case, the most significant difference from Bradford, supra and Jones, supra, is that Mr. Ticehurst was not a witness to a crime. Three days after the murder, Detective Lively was still looking for an actual witness to the murder, or at the very least, a person who may have been present the day of the murder. Mr. Ticehurst was identifying a person he saw the day prior to the crime. Moreover, there had been no prior identifications of the defendant by any other witness whereby Detective Lively could have created a photo array to show Mr. Ticehurst. It was Mr. Ticehurst’s detailed description of the Jeep, with the Purple Heart license plate, that led Detective Lively to run the ownership through PennDot and secure the DMV picture of the defendant. Furthermore, once Mr. Ticehurst identified the photo as the defendant, Detective Lively 16 verified the identification by sending an officer out to the defendant’s home to confirm there was a Jeep matching the description Mr. Ticehurst provided. N.T. 53. Therefore, this Court finds the means in which Detective Lively showed a single photograph to Mr. Ticehurst was not suggestive. However, like in Jones and Bradford, this Court is going to continue with the analysis as if the showing of the single photograph were suggestive. The Commonwealth showed that the identification did not involve a substantial likelihood of misidentification. Mr. Ticehurst and the defendant were the only shooters at the range th between 10:00 a.m.- 2:00 p.m. on July 20. Mr. Ticehurst described the defendant as a “white male in his mid-60’s wearing a t-shirt, olive drab cap, and suspenders”. He described the defendant’s vehicle as being a dark-colored, four-door Jeep Wrangler with a bronze star sticker and a combat wounded plate. Additionally, Mr. Ticehurst described the defendant’s firearm as an AR-15. Mr. Ticehurst and the defendant were 10-12 feet from each other, and Mr. Ticehurst attempted to engage the defendant in conversation, to which the defendant ignored him. The defendant’s usual demeanor further drew the attention of Mr. Ticehurst when the defendant stood watching him and then quickly walked away as Mr. Ticehurst approached him. At the time Detective Lively showed Mr. Ticehurst the single DMV photo of the th defendant, Mr. Ticehurst identified the defendant as the man he saw on July 20 “without a doubt.” N.T. 141. Furthermore, at the time of the suppression hearing, Mr. th Ticehurst identified the defendant as the person he saw on July 20 and noted that he now looked different; “he has longer hair and looks older.” N.T. 152. Based on the 17 totality of circumstances, Mr. Ticehurst’s out-of-court identification has an independent basis and there is no likelihood of misidentification. There was nothing suggestive about the photo array that Mr. Hosler was shown. At the suppression hearing, Mr. Hosler testified that he was shown one sheet of paper with six black and white photographs. He identified Commonwealth Exhibit #3 as the pictures, noting that instead of six individual pictures they were all on one page. While a photographic identification will be suppressed if the array of pictures used has not been preserved, where at least some of the photographs and a general description of the procedure followed are available, there is a definable basis on which to determine whether suggestiveness or coercion was involved. See Hodge, supra.; Cooper, supra. There is no significance that Mr. Hosler did not identify the exact photo array at the suppression hearing. He identified Commonwealth Exhibit #3 as the pictures he was shown; the pictures were in the same order as Exhibit #3, just in a different setting. When the police showed Mr. Hosler the photo array, Mr. Hosler was told they are all DMV pictures. N.T. 125. He was not told that there was a suspect in any of the pictures. N.T. 126. He was just shown the pictures. N.T. 118-19. Furthermore, after Mr. Hosler identified the picture of the person he saw at the range back on May 21st, he told the police that the man looked heavier in the picture than the day he saw him. N.T. 119. Moreover, at the suppression hearing, he identified the defendant, noting that his hair was longer and that he wore it short while at the range. N.T. 127. Because there 18 was nothing suggestive about the identification, there is no further analysis that needs 1 to be done. There was nothing suggestive about the photo array shown to Mr. Steve Sheaffer and his son, Bryce Sheaffer. Steve Sheaffer identified Commonwealth Exhibit #12 as the black and white photo array he was shown. The defendant argues that since Steve Sheaffer noted that the defendant was wearing some type of camouflage, and the 2 composite shows the defendant in some type of “camouflage garb,” the array was unduly suggestive. Steve Sheaffer testified the array was black and white so no color is shown. The defendant is wearing a patterned shirt just like a gentleman in another photograph. No further analysis needs to be conducted. The Commonwealth failed to have Bryce Sheaffer identify which photo array he was shown. While Bryce testified that he and his father were shown a photo array apart from each other, he testified that he was shown an array with six pictures on six individual sheets. Bryce Sheaffer did testify as to the photo array procedure. A male officer came to the house to show him and his dad the array. At different times the officer took Bryce and his dad out to the back of the house to look at the pictures. N.T. 231. The process took about five minutes or less. N.T. 231. Bryce picked out the defendant’s picture “pretty easily”. N.T. 231. No one directed Bryce to a certain picture. He was just shown the pictures, and he picked the defendant’s picture. N.T. 231-32. 1 The Court’s Findings of Fact support a subsequent finding that the Commonwealth proved by clear and convincing evidence that Mr. Hosler had an independent basis for the identification of the defendant, based on his observations on May 21, 2010. 2 Defendant’s brief pages 23-24. 19 Regardless, Bryce Sheaffer’s suppression hearing identification will not be suppressed and he will be allowed to make an identification at trial. Bryce’s physical description of the defendant matched the description his father gave. Furthermore, the clothing description matched. Bryce identified the firearm the defendant was using. He was even able to describe the ear plugs the defendant put in his ears when Bryce and his dad fired rounds. “It was like the little yellow ones you would stick in your ear itself, not like over top. They had a string around them that would go around your neck so you wouldn’t lose them.” N.T. 222. Bryce, along with every other witness who had come in contact with the defendant, got a “weird vibe” and uncomfortable feeling about the defendant. Further, being a college student at Millersville University at the time, Bryce had not subscribed to a newspaper and had not watched the news surrounding this murder. N.T. 214. At the suppression hearing, Bryce noted that the defendant had th facial hair and longer hair than he did back on July 20. N.T. 214. There was nothing to taint his suppression hearing identification. B. THE INTERVIEW OF THE DEFENDANT WAS NON-CUSTODIAL The defendant contends that the defendant was in custody when questioned by Detective Lively and Sergeant Manetta, and that while Miranda warnings were given, the waiver was not voluntary or knowing. This Court finds that the defendant was not in custody when the police interviewed him; therefore, Miranda warnings were not mandatory. The warnings articulated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), become mandatory whenever one is subjected to custodial 20 interrogation. The United States Supreme Court has defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444 See also Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980). In Pennsylvania, the test for determining whether a suspect is in custody is whether the suspect 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. Commonwealth v. Eichinger, 591 Pa. 1, 21, 915 A.2d 1122, 1133-34 (2007); Commonwealth. v. Chacko, 500 Pa. 571, 459 A.2d 311, 314 (1983) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “Police detentions only become custodial 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.” Commonwealth v. Brown, 400 Pa. Super. 316, 325, 583 A.2d 805, 810 (1990) citing Commonwealth v. Ellis, 549 A.2d 1323 (Pa. Super. 1988). Factors which may be considered include the basis, duration, location, and method of detention, as well as the investigative methods used. Id. 1. Basis of Detention The defendant places great weight on the fact that neither Sergeant Manetta nor Detective Lively told him he was a suspect in a murder, therefore, making his Miranda waiver unknowing. However, the basis for the detention is a factor in determining whether the interview was non-custodial in nature. In Commonwealth v. Craig, 498 A.2d 957 (Pa. Super. 1985), and Commonwealth v. McCarthy, 820 A.2d 751 (Pa. 21 Super. 2003), the appellate Courts considered the officers informing the defendants that they were suspects in a specific criminal matter as a factor in determining that the suspects were in custody. In Commonwealth v. Craig, the Court found that the defendant was in custody and was entitled to Miranda safeguards. The defendant had been picked up at his place of work by a police officer and transported to police headquarters. At the station he was met by two detectives, taken into an interrogation room, and the door was closed. Additionally, the defendant was told that he was suspected of being involved in a recent murder. The defendant then told the detectives he would tell them what happened. The detectives Mirandized the defendant and the defendant gave inculpatory statements. 498 A.2d at 959. This case is valuable in that the Superior Court relied on the fact that the detectives informed the defendant he was a suspect in a murder case to determine that the defendant was in custody. Similarly, the Court in McCarthy found the defendant was subject to the equivalent of a custodial investigation. One of the factors the Court considered was that the officer told the defendant she was a suspect in a theft case and that the officer was confident that the handwriting analysis would prove she signed the stolen credit card. 820 A.2d at 759. Unlike Craig and McCarthy, in the present case, Detective Lively told the defendant they were investigating a criminal matter and he and Sergeant Manetta wanted to talk to him about it. The defendant was not told he was a suspect; he was not told there was a murder; and he certainly was not told he was a suspect in a murder 22 investigation. Therefore, the basis for the detention, or the questioning, was not so coercive as to constitute the functional equivalent of a formal arrest. 2. Location of Detention When the defendant was interviewed, he was at work at the Camp Hill Prison. Detective Lively and Sergeant Manetta secured three rooms at the prison to interview the defendant and two other employees. The mere fact that the defendant was interviewed in prison, his place of employment, does not mean he was in custody. The United States Supreme Court has expressly declined to adopt a bright-line rule for determining the applicability of Miranda in prisons. “We have never decided whether incarceration constitutes custody for Miranda purposes, and have indeed explicitly declined to address the issue.” Maryland v. Shatzer, 130 S.Ct. 1213, 1224 (2010) (citing Perkins, supra, at 299, 110 S.Ct. 2394). “In sum, our decisions do not clearly establish that a prisoner is always in custody for purposes of Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison.” Howes v. Fields, 132 S. Ct. 1181, 1188-89, 182 L. Ed. 2d 17 (2012). (“Interrogated suspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine—they regain the degree of control they had over their lives prior to the interrogation”). Id. at 1194. In the present case, the defendant does not argue that the mere fact he was in prison indicates that he was in custody. In support of the defendant’s argument that he 23 was in custody, he relies on his interpretation of the suppression hearing testimony that the defendant’s superior directed him toward the interview room; therefore, a reasonable person would not have felt free to decline the interview. There are no facts to support this finding. While the defendant was “administratively” called to the general area where the correctional officers have their desks, he was not told he had to talk to the police; no one directed his movements; and no one threatened him that he would lose his job if he did not talk to the police. Furthermore, the defendant never requested to stop the interview so he could go back to work. Therefore, the location of the detention was not so coercive as to constitute the functional equivalent of a formal arrest. 3. Duration of Detention In Commonwealth v. DiStefano, 782 A.2d 574, 581 (Pa. Super. 2001), the defendant was interviewed for eleven hours that extended overnight. Additionally, five hours before the conclusion of the interview, the defendant denied committing the crime and the police told him they did not believe him. With other factors to consider, the Court found this to be equivalent to a custodial interrogation, requiring Miranda. The present case is distinguishable from the facts in DiStefano. In the present case, the defendant was interviewed for two hours. The interview spanned from 2:00 p.m. through 4:00 p.m. During this time, the defendant was adamant he did not kill Todd Getgen. Once it was obvious to Sergeant Manetta that the defendant was not going to admit to anything other than taking the victim’s weapon, Sergeant Manetta 24 stopped asking him questions about the murder and talked to the defendant about the defendant’s military service. Commonwealth Exhibit #4, lines 3422-3697. Two hours of interview time, over the afternoon hours, is not equivalent to a custodial detention. 4. Method of Detention The defendant was in a room with a door that had a window and a window that led to the outside. He was inside the room with two officers who were unarmed and professionally dressed. Immediately outside the room was the main area where the correctional officers had their desks. While the door to the interview room was closed, the officers explained that the defendant was hard of hearing and they wanted the least amount of distraction. The defendant was not restrained nor were there shackles or restraints in the interview room. The defendant never asked for food or drink, but near the end of the interview Detective Grove brought the defendant a drink from the water fountain. The mere fact the door was closed is not sufficient to find the interview was custodial. In Commonwealth v. Baker, 963 A.2d 495, 501 (Pa. Super. 2008), the door to the interview room was closed, but was not locked and the officers were not blocking the defendant’s access to the door. In the present case, the record is silent on whether the door was locked and where the officers were seated compared to the defendant. However, this Court is satisfied that the purpose of closing the door was to limit distractions and make sure the defendant could hear and understand the questions being posed to him. Additionally, at no point in the interview did the defendant request to stop the interview or leave the room where the officers refused to allow him to leave. 25 Therefore, the method of detention did not equate to a custodial detention. 5. Investigative Methods In Commonwealth v. Eichinger, 915 A.2d 1122 (Pa. 2007), the Supreme Court upheld the trial court’s finding that the defendant was not in custody at the time he confessed to committing three murders. Two detectives went to the defendant’s work, where the defendant agreed to talk to the detectives in an office on the second floor. The detectives made it clear to him that he was not under arrest and remained free to leave. The defendant lied to the detectives about where he was the morning of the murders and the detectives knew he was lying. One of the detectives stepped out of the room and stood in the hall for a few moments. When he returned, he told the defendant he had just received information that the police would find DNA in the victims’ driveway that would link the defendant to the murders. Hearing this evidence, the defendant admitted that ‘I did it.’ In order to clarify, the detective asked, ‘Do you mean that you killed Lisa, Avery and Heather Greaves?’ The defendant answered, ‘Yes.’ Id. at 1131-32. The detectives then read the defendant his Miranda warnings. In the present case, the officers challenged the defendant when he denied being at the game lands on the day of the murder. The officers told the defendant people saw him that day. Furthermore, they told him they were confident that the ballistics would come back to his firearm. And, yet, the defendant consistently denied shooting the victim. Confronting the defendant with evidence, like the detective did in Eichinger, is an acceptable method of interviewing defendants, and does not trigger Miranda. 26 Additionally, the defendant relies heavily on the fact that Detective Lively read the defendant his Miranda warnings to support his argument that he was in custody. In Commonwealth v. Morgan, 610 A.2d 1013 (Pa. Super. 1992), the Court refused to create a new law that where an officer takes the precautionary step of reading Miranda to a non-custodial suspect, that this alone renders the subsequent confession presumptively coerced. Id. at 1016. The Court further expounded that …there is nothing inherently coercive about the fact that the officer warned appellee of her right to remain silent, of the fact that what she said could be used against her, of her right to cut off questioning whenever she so chose to, or of her right to an attorney. The decision to gratuitously apprise appellee of her Miranda rights in situations such as this, where the law did not require that such advice be offered, should be applauded, not deterred. This fact suggests that the police officer acted with an abundance of caution to insure that no answer be given without the benefit of a relevant legal education. To find fault with this would surely inhibit such spontaneous tutelage. Neither law nor logic would compel us to do so. Id. at 1019. In the present case, the defendant was told the officers wanted to talk to him about a criminal matter. Sergeant Manetta told the defendant he was not under arrest, they just wanted to talk to him. Detective Lively read the defendant his Miranda warnings and the defendant signed the waiver. The warnings advised the defendant he had the right to remain silent and anything he said would be used against him. This is equivalent to the officer telling him he did not have to talk to him. Furthermore, the defendant worked in law enforcement at the Adams County Prison for seven years and Camp Hill Prison for eleven years, so the defendant was educated in the criminal justice 27 system. Given the defendant’s active service in the Marine Corps and his work experience the defendant knew that he did not have to speak with the officers. 6. Statement Was Voluntary When deciding a motion to suppress a confession, the touchstone inquiry is whether the confession was voluntary. Voluntariness is determined from a totality of the circumstances surrounding the confession. The question of voluntariness is not whether the defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess. The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily. “...When assessing the voluntariness pursuant to the totality of the circumstances, a court should look at the following factors: 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”. DiStefano, 782 A.2d at 581 citing Commonwealth v. Nester, 709 A.2d 879, 882–83 (1998) (citations and footnotes omitted). The facts in the present case suggest that the statement the defendant gave was not coercive, but given voluntarily. Sergeant Manetta and Detective Lively conducted the interview of the defendant. Both were dressed professionally and without firearms. The defendant was “administratively called” to an open office area where the correctional officers had their desks. There, the defendant was shown the interview 28 room. While a captain at the prison showed defendant the interview room, he did not direct the defendant’s movements. When the defendant entered the room, the doors were closed and Sergeant Manetta and Detective Lively introduced themselves. The defendant was not handcuffed or restrained, nor were there restraints in the room. The interview room was a ten by ten room with a door that had a window in it, and a small, high window in the wall leading to the outside. Inside the room was a table and three chairs. Detective Lively told the defendant they were there conducting a criminal investigation, without any other details. Detective Lively read the defendant his Miranda warnings and the defendant signed. Sergeant Manetta told the defendant he was not under arrest; they just wanted to talk to him. The defendant gave the officers permission to record the interview. At the time of the interview the defendant was employed at the Camp Hill Prison and had been eleven years. The defendant had a high school degree and was on active duty in the United States Marine Corps for twenty five years. The overall tone of the interview was conversational. However, there were moments where the officers raised their voices, either so the defendant could hear or out of frustration. There was one portion of the interview where Sergeant Manetta cursed, but he was not directing his language toward the defendant, but out of frustration for the system. Commonwealth Exhibit #4, lines 2978 – 2995. The defendant was never verbally threatened. The officers noted that the defendant was not under the influence of alcohol or drugs and he understood the questions posed to him. If he could not hear, he indicated such. Furthermore, there were questions the defendant told the officers he would not 29 answer. The interview only lasted two hours. Toward the end of the two hours, Detective Grove brought the defendant water from the water fountain. While the officers posed a few hypotheticals as to how or why the defendant would have killed the victim, the defendant stood his ground and never admitted to shooting the victim. Based on the totality of circumstances, the Commonwealth proved beyond a preponderance of the evidence that the defendant’s statements were made voluntarily. 7. Conclusion Based on the totality of the circumstances, the defendant was not in custody; therefore, Miranda warnings were not necessary. Moreover, based on the totality of the circumstances, the defendant’s statements were voluntarily made. Interestingly, the defendant never confessed to the murder of Todd Getgen, nor did he offer a theory as to how the defendant was murdered. The only incriminating statements the defendant made were the contradictory statements that he was not on the range the day of the murder and that the victim was already dead when he came upon him and took the firearm. C. POLYGRAPH STATEMENTS ARE ADMISSIBLE The defendant contends that the statements made to the polygrapher were tainted by the illegality of the original admission. This issue is controlled by the Pennsylvania Supreme Court's decision in Commonwealth v. Chacko, 459 A.2d 311 (1983) and further defined by the United States Supreme Court in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). The U.S. Supreme Court stated: “It is 30 an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id. at 309, 105 S.Ct. at 1293. The relevant inquiry is whether the second statement was voluntarily made. As in any such inquiry, this Court must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. Id. at 318, 105 S.Ct. at 1298. In the present case, during the interview at the defendant’s employment, he asked if he could take a polygraph. At the conclusion of the two hour interview, the defendant was arrested and immediately taken to the North Middleton Police Department for the polygraph. The polygraph was conducted by Corporal Holly Kaehn and supervised by Detective Les Freehling. Corporal Kaehn was dressed professionally, while Detective Freehling was wearing a short-sleeve shirt and jeans. The defendant was not handcuffed, and they were in a large office. Prior to starting the polygraph, Corporal Kaehn read the defendant his Miranda warnings and the defendant waived. 31 The polygraph began with preliminary questions. The entire process took four hours. Corporal Kaehn explained that she hand wrote the defendant’s answers which contributed to the time. Additionally, she and Detective Freehling testified that the tone of the interview was calm and no one raised their voices. The defendant never requested a break, and at some point requested an attorney and the questioning immediately stopped. First, this Court found that the earlier interview was properly conducted. Prior to the second interview, the defendant was advised of his Miranda warnings. This was proper because the defendant was under arrest. Based on the totality of the circumstances, the second statement the defendant gave during the polygraph was voluntary. Therefore, the statements made to Corporal Kaehn are admissible. D. ANY STATEMENTS MADE OR SILENCE IN RESPONSE TO FBI QUESTIONS ARE INADMISSIBLE. At the time the defendant gave a proffered statement to the US Attorney’s Office, he was under arrest. Agent Doupe could not remember if the defendant was Mirandized prior to giving his statement. However, the statement was given in the presence of the defendant’s attorney. Prior to Agent Doupe and another FBI agent transporting the defendant back to the Cumberland County Prison, no Miranda warnings were given. At this point, the defendant’s lawyer was no long present. Agent Doupe was unclear on the conversation between the agents and the defendant. But, the agents suggested that the defendant take them to the Carlisle truck 32 station to see if they could locate “trucker Matthew”. At the proffer session, the defendant said “trucker Matthew” killed the victim. Agent Doupe could not remember if the defendant verbally declined or indicated somehow that he did not want to go. Since the defendant was under arrest; no Miranda warnings were given; and the defendant’s attorney was not present for the transport, no statements made during the transport are admissible. Furthermore, the defendant’s silence is inadmissible at trial. Accordingly, the following Order of Court will be entered: th AND NOW , this 15 day of August, 2012, upon consideration of the Defendant’s Omnibus Pre-Trial Motion, the Commonwealth’s Answer thereto, and after hearing and consideration of the briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that: 1. Defendant’s Motion to Suppress statements made during his interview at the State Correctional Institute, Camp Hill on July 30, 2010, and the statements made during the course of the Defendant’s polygraph taken at the North Middleton Township DENIED Police Department on July 30, 2010, are . 2. Defendant’s Motion to Suppress statements made or silence in response to FBI questioning during his transport back to the Cumberland County Prison after a GRANTED proffer session with the United States Attorney is . No statements made during the transport will be admissible. Additionally, any silence by the Defendant in response to FBI questioning during this transport is inadmissible. 33 3. Defendant’s request that the Court suppress all out of court and in court DENIED identifications of the Defendant is . By the Court, M. L. Ebert, Jr., J. Jaime Keating, Esquire First Assistant District Attorney Christin Mehrtens-Carlin Senior Assistant District Attorney Taylor Andrews, Esquire Court Appointed Counsel for Defendant Gregory B. Abeln, Esquire Co-Court Appointed Counsel for Defendant Court Administrator bas 34