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HomeMy WebLinkAboutCP-21-CR-0000346-2012 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CP-21-CR-0346-2012 v. : CHARGES: (1) INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : (2) INDECENT ASSAULT : (3) TERRORISTIC THREATS : (4) INDECENT ASSAULT : ELMER GREEN : AFFIANT: TPR. KENNETH TALLMAN OTN: T 123942-0 : IN RE: MOTION TO SUPPRESS OPINION and ORDER For consideration at this time is Defendant’s Omnibus Pretrial Motion. (Defendant’s Omnibus Pretrial Motion, filed Aug. 17, 2012). Subsequent to being interviewed by the Pennsylvania State Police, Elmer Charles Green (hereinafter, “Defendant”) was charged with the above-captioned offenses. Defendant has filed the instant motion asserting that he was subject to a custodial interrogation without being informed of his Miranda rights and that he made inculpatory statements as a result of the th interrogation. Therefore, he contends that his rights under the 5 Amendment to the United States Constitution and under Article 1, Section 9 of the Pennsylvania Constitution were violated and that all evidence obtained as a result of the alleged violation should be suppressed. For the reasons that follow, Defendant’s Motion will be denied. A suppression hearing on Defendant’s Motion was held on April 4, 2013. The testimony established the following: The Defendant’s name had surfaced in a report of a sexual assault that Corporal Kenneth Tallman was investigating. (Notes of Testimony, 3-4, In Re: Transcript of Proceedings Omnibus Pretrial Motion, Apr 4, 2013 (hereinafter “N.T. __”)). This sexual assault was alleged to have occurred several years before it was reported and investigated. (N.T. 13-14). Corporal Tallman went to the Defendant’s residence with Trooper Ben Wilson. (N.T. 4). The officers were in plain clothes. (N.T. 12). When Corporal Tallman and Trooper Wilson knocked on the door, two males answered the door and then brought the Defendant to the door. (N.T. 4). Immediately, the Defendant asked the officers if they were there because of his Megan’s Law registration. (N.T. 4). The Defendant then told the officers that he had just registered. (N.T. 4). When the officers notified the Defendant that they were not there because of the registration, the Defendant stepped out onto the porch. (N.T. 5). Corporal Tallman testified that it was a cold day and that he did not think it would be suitable to interview the Defendant about the sensitive topic of a sexual assault in the home since there were multiple people living there. (N.T. 5-6). As a result, the officers asked the Defendant if he would speak to them in their car, an unmarked police car that did not contain a cage. (N.T. 5-6). Initially, the police car was parked in front of the Defendant’s residence. (N.T. 8). The Defendant sat in the front passenger seat, Corporal Tallman sat in the driver’s seat, and Trooper Wilson sat in the back. (N.T. 6). The front passenger seat door was unlocked, and, in any event, if locked, pulling on the handle would unlock it. (N.T. 6). The Defendant got into the car under his own control and he was not frisked or handcuffed before doing so. (N.T. 6-7). Corporal Tallman told the Defendant that he was not under arrest and that the officers just wanted a few minutes of his time. 2 Around that time, the Defendant’s sister approached and wanted to know what was going on. (N.T. 8). The Defendant’s sister also stated that the Defendant already completed his Megan’s Law registration. (N.T. 8). Trooper Wilson informed the Defendant’s sister that they were not there in relation to the Megan’s Law registration, that the Defendant was not under arrest, and that the Defendant would be returning soon. (N.T. 8). Corporal Tallman drove the car halfway up the block to avoid any further interference from the Defendant’s sister. (N.T. 8-9). After parking the car, Corporal Tallman began to record his interview with the Defendant. Corporal Tallman testified that it was not unusual for him to record an interview and that he records approximately 90% of the interviews that he conducts. (N.T. 13). The recording of the interview was played at the suppression hearing. (N.T. 8-9). In conjunction with playing the interview, Corporal Tallman testified that the Defendant was coherent during the interview and that he understood the questions, as demonstrated by the Defendant being able to recall details about the night that was the subject of the interview. (N.T. 10-11). The Defendant was not arrested that day, the Defendant was returned home, and the entire encounter lasted approximately twenty minutes. (N.T. 7-8, 11). The Defendant’s counsel presented testimony of psychologist, Dr. Wayne Schmoyer. (N.T. 16). Dr. Schmoyer administered intelligence quotient (hereinafter “IQ”) and adaptive behavior tests to the Defendant. In doing so, Dr. Schmoyer was with the Defendant for approximately two hours. (N.T. 17, 21-22). Though the Defendant was 48 years old at the time Dr. Schmoyer tested him, Dr. Schmoyer testified that the Defendant’s performance was comparable to a six-year-old in terms of social 3 communication. (N.T. 19). Furthermore, Dr. Schmoyer testified that the full scale IQ score of the Defendant was 65 and at the level of mental retardation. (N.T. 19). Dr. Schmoyer testified that the Defendant was coherent during the questioning, understood the instructions for the various tests, and that he was not confused. (N.T. 22-23). The Defendant then took the stand and testified that he remembered speaking with the officers. (N.T. 24). The Defendant stated that the officers told him that he was free to leave and that he was not under arrest. (N.T. 24). However, the Defendant further testified that he did not actually feel like he could leave. (N.T. 24). On cross- examination, the Defendant then went on to restate that he was told that he was not under arrest, that he was free to leave, that he was not arrested, and that the officers returned him home. (N.T. 25-26). Defendant has been charged by way of a Criminal Information with the following: at Count I: Involuntary Deviate Sexual Intercourse, a violation of 18 Pa.C.S.A. Sec. 3123(a)(1); at Count II: Indecent Assault, a violation of 18 Pa.C.S.A. Sec. 3126(a)(2); at Count III: Terroristic Threats, a violation of 18 Pa.C.S.A. Sec. 2706(a)(1); and at Count IV: Indecent Assault, a violation of 18 Pa.C.S.A. Sec. 3126(a)(1). Defendant has filed the instant suppression motion asserting that he did not feel as if he was free to leave when being interviewed in the police car, he was not informed of his constitutional, Miranda, rights prior to the interview, that the he made inculpatory th statements, and that those statements violated the Defendant’s rights under the 5 Ammendment to the United States Constitution and under Article 1, Section 9 of the Pennsylvania Constitution. We disagree. 4 Initially, we note the existence of the well-established burden placed upon the Commonwealth in suppression matters to establish, by a preponderance of the evidence, that the challenged evidence is admissible. Commonwealth v. Joseph, 2011 Pa. Super. 273, 34 A.3d 855, 860 (citing Commonwealth v. Simmons, 2011 Pa. Super. 43, 17 A.3d 399, 402). Miranda warnings are required only when a suspect is subjected to custodial interrogation. Commonwealth. v. McAliley, 2007 Pa. Super. 55, 919 A.2d 272, 278. It is well established that, “a person is in custody for Miranda purposes only when he is physically denied his freedom of action in any significant way or is placed in a situation which he reasonably believes that his freedom of action or movement is restricted by the interrogation.” Commonwealth v. Johnson, 42. A.3d 1017, 1028 (Pa. 2012) (citations omitted). The standard in determining whether an encounter with the police is custodial is an objective one, with due consideration given to the reasonable impression of the person interrogated, rather than the subjective view of the troopers or the person being seized, and must be determined with reference to the totality of the circumstances. Commonwealth v. Pakacki, 587 Pa. 511, 519, 901 A.2d 983, 987 (2006). In Commonwealth v. Housman, the defendant, under his own free will, entered the front seat of a police car, which was unlocked and did not contain a cage. (604 Pa. 596, 625-26, 986 A.2d 822, 839 (2009). The defendant was then interviewed for 15 to 20 minutes before leaving the car and returning home. Id. Under those circumstances, the Pennsylvania Supreme Court determined that a reasonable person would not feel that he was under arrest; thus, Miranda warnings were not required. Id. Here, from the onset, Corporal Tallman and Trooper Wilson told the Defendant he was not under arrest and that he was free to leave. In the presence of the Defendant, 5 the officers also informed the Defendant’s sister that the Defendant was not under arrest. The interview was conducted in the police car so that the alleged sexual assault would not be discussed in presence of the multiple people that were present at the Defendant’s residence. As in Housman, the Defendant entered the front seat of the police car under his own free will, the car did not contain a cage, and the car was unlocked during the interview. In both Housman and in this case, the police interaction lasted approximately 20 minutes before the Defendant returned home. In this instance, the police car was parked less than a block from the Defendant’s residence when he was being interviewed. For these reasons, we find that a reasonable person in the Defendant’s position would not feel that he was under arrest. The Defendant suggests that his below average intelligence overrides the surrounding circumstances including the fact that he was repeatedly told that he was free to leave. Mental deficiencies, however, do not make one per se unable to waive constitutional rights. Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976). The Defendant had a clear recollection of being instructed that he was not under arrest and that he was free to leave. Furthermore, the testimony reflects that the Defendant was coherent during the interview and that he understood what was going on during the interview. Though the Defendant has below average mental ability, he demonstrated an ability, as verified by Dr. Schmoyer, to comprehend instructions. We find no reason to believe that the Defendant would not also be able to understand the police instruction that he was not under arrest and free to leave. 6 Accordingly, we find that the Defendant was not in custody and therefore was not entitled to being informed of his Miranda rights. As a result, the statements obtained by the officers will not be suppressed. ORDER rd AND NOW, this 3 day of May, 2013, upon consideration of Defendant’s Omnibus Pre-Trial Motion, and following a suppression hearing held April 4, 2013, Defendant’s motion is DENIED. BY THE COURT, Kevin A. Hess, P.J. Emily Provencher, Esquire Assistant District Attorney Arla Waller, Esquire Deputy Public Defender :rlm 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CP-21-CR-0346-2012 v. : CHARGES: (1) INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : (2) INDECENT ASSAULT : (3) TERRORISTIC THREATS : (4) INDECENT ASSAULT : ELMER GREEN : AFFIANT: TPR. KENNETH TALLMAN OTN: T 123942-0 : IN RE: MOTION TO SUPPRESS ORDER rd AND NOW, this 3 day of May, 2013, upon consideration of Defendant’s Omnibus Pre-Trial Motion, and following a suppression hearing held April 4, 2013, Defendant’s motion is DENIED. BY THE COURT, Kevin A. Hess, P.J. Emily Provencher, Esquire Assistant District Attorney Arla Waller, Esquire Deputy Public Defender :rlm