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Commonwealth v. Rushing

Superior Court of Pennsylvania

June 28, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RANDAL R. RUSHING, Appellant

Appeal from the Judgment of Sentence of October 4, 2010 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002572-2008.

BEFORE: STEVENS, P.J., BOWES, and STRASSBURGER, [*] JJ.

OPINION

BOWES, J.

Randal R. Rushing appeals from the judgment of sentence of three consecutive life sentences plus forty-three years and nine months to eighty-seven years and six months incarceration imposed by the trial court. Appellant was convicted of three counts each of first-degree murder, second-degree murder, and third-degree murder in connection with the killings of three individuals. He also was adjudicated guilty of multiple counts of kidnapping and robbery, and one count of indecent assault. After careful review, we affirm each of Appellant's convictions for first-degree and third-degree murder as well as each count of robbery, and indecent assault. However, we reverse his convictions for kidnapping and second-degree murder and vacate Appellant's judgment of sentence as to the kidnapping convictions.[1]

Appellant, on July 17, 2008, brutally attacked and killed Justin Berrios, Leslie Collier and Dustin Hintz at the Collier/Hintz home. Justin was twenty-years old, Leslie was sixteen, and Dustin was twenty-two. At the time, Appellant resided with Cynthia Collier, who was Leslie and Dustin's mother, and Wes Collier, who was Leslie's father and Dustin's stepfather. Also living in the home were nineteen-year-old Samantha Hintz, Appellant's former girlfriend and a sister to Leslie and Dustin, twenty-year-old Matthew Collier, the brother of two of the victims, and Tristan Berrios, the two-year-old son of Samantha. Justin Berrios was Samantha's former boyfriend and the father of her son. Justin was at the Collier/Hintz home at the time of the crimes.

After stabbing Justin to death, Appellant attacked Leslie, a male, between 4:00 and 4:30 a.m. Following the attack, Leslie managed to awaken his mother, Cynthia, and told her to call 911. According to Cynthia, Leslie was bleeding profusely and covered from his neck to his feet in blood. Cynthia ran into the kitchen to call 911 from the home phone and began to yell for the telephone when she discovered that it was not in the kitchen. Dustin, hearing his mother, ran up from the basement while his mother retrieved her cell phone. Dustin helped his brother to the floor in a hallway when Appellant appeared with a gun and pointed it at Dustin and ordered everyone onto the floor, threatening to kill them if they did not obey. Cynthia asked Appellant what he was doing to which he responded, "I'm giving Samantha something she'll remember." N.T., 9/27/10, at 185. Appellant then took Leslie into the kitchen before returning and directing Cynthia to her son Matthew's room. Matthew is handicapped and unable to walk. Cynthia complied with Appellant's directive and he handcuffed her hands behind her back. Appellant then ordered Dustin into his mother's bedroom. Cynthia stated that she could hear Appellant hitting Dustin. Subsequently, Appellant re-entered Matthew's room and placed a gun against Cynthia's head and demanded that she "shut the fuck up" or he would kill her. Id. at 193. At this point, he tied Matthew's hands with a shirt and his feet with a computer cable.

Appellant then left the bedroom and began to walk up and down the stairs of the house before re-entering the bedroom where he had forced Dustin. Cynthia stated that she observed Appellant select a red hammer from a toolbox in that room and began to hit Dustin. Dustin died of massive blunt force trauma to the head. Afterward, Appellant showered and came back into Matthew's room. He asked Matthew and Cynthia for their bank cards and pin numbers. Both Matthew and Cynthia told him where to find their respective cards and gave him their pin numbers. Appellant also took Cynthia's anniversary ring.

Samantha Hintz arrived home at approximately 5:40 a.m. and was greeted by Appellant who offered to help carry groceries. Appellant then told Samantha that he had a surprise for her and told her to go to her son's room. Samantha checked on her son, and Appellant instructed her to go to her bedroom. After entering her bedroom, Appellant shoved her onto her bed, but she resisted and asked where Justin Berrios was located. Appellant lifted up a sheet and displayed the dead body of Justin, who was laying next to the bed. Justin had been stabbed fourteen times including seven stab wounds to the neck. Appellant then attempted to get Samantha onto her stomach on the bed. Samantha struggled with Appellant and he threatened her with a gun. Next, Appellant tied Samantha's hands with a necktie and her feet with a belt and left the room before returning again. Appellant took Samantha's cell phone and looked through her call list before throwing the phone onto Justin's body. He then climbed on top of Samantha, kissing her and telling her that he loved her.

Thereafter, Appellant removed Samantha's bank card and cash from her purse and exited the bedroom. Appellant, however, returned and said that he should rape Samantha. He sat next to her on her bed and placed his hand inside of her shirt and grabbed her breast as well as giving her a hickey on her neck. Subsequently, he took her car keys and told her that if he was not back in a half-hour that she could do whatever. Before leaving, he remarked that his killing spree was not yet complete. At some point, Appellant also entered Matthew's room and told Matthew and Cynthia that Wes Collier would be the next person in the house and that they could yell for help when he arrived home from work. However, he then stated, "fuck it, it's six o'clock now. If I ain't back by 6:30 you guys can do whatever the hell you want." Id. at 209.

Samantha was eventually able to dial 911 on her cell phone with her toe. Police arrived at approximately 6:53 a.m. and found Samantha, Cynthia, and Matthew still bound. Leslie was dead in the blood-soaked kitchen. Bloody clothes were located in the basement of the home and various knives and three bloody hammers were also found. Police recovered bloody socks in the kitchen and blood was identified in the bathroom on the bath tub, a rug, and wash cloth. Missing from the home were four game systems, various video games, and jewelry.

In order to locate Appellant, police sought a court order to ping Appellant's cellular phone and find his approximate position via real time cell site location information. Detective Chris Kolarchno defined pinging at the suppression hearing as determining the real time location of the cell phone by looking at the cell signal between the phone and the closest cell tower and finding the last known address where the cell phone transmitted a signal requesting service. N.T., 8/13/09, 102-103. Detective Kolarchno stated that police also used the cell phone's GPS system to find Appellant. Id. at 104.

The Court of Common Pleas issued an order and police tracked Appellant to a street in Wilkes Barre, Pennsylvania. Police were able to fix the location of Appellant's phone within 98 meters or approximately 300 feet. Police determined Appellant's precise location after observing Samantha's stolen car outside of a residence and interviewing two individuals who exited that home. Law enforcement secured a search warrant and Appellant was arrested. Police discovered the Wii and a Playstation game system owned by the Colliers in that house as well as a gun with traces of blood on it. In addition, Samantha's vehicle contained Cynthia and Matthew's bank cards.

Appellant was transported to the Scranton Police Department and placed in a holding cell at approximately 4:30 p.m. Since Appellant's socks and shoes were considered evidence, they were confiscated. After viewing the news of Appellant's arrest, Attorney Paul Walker of the Lackawanna County Public Defender's Office called the district attorney and asked him not to interview Appellant. At 7:00 p.m., Attorney Walker arrived at the police station and repeated his request that Appellant not be interviewed and asked to see Appellant. Officer Todd Garvey informed Assistant District Attorney Eugene Talerico, who was present at the police station, of Attorney Walker's wishes, but he was not permitted to speak with Appellant.

Detective James Pappas interviewed Appellant around 7:30 p.m. He did not inform Appellant that an attorney had appeared and asked to speak to him. Detective Pappas asked Appellant if he would speak to him and Appellant indicated that he would discuss the matter if he could have a pair of socks. Detective Pappas provided Appellant with a pair of hospital booties and read him his Miranda rights. Appellant initialed a Miranda waiver form after Detective Pappas wrote in Appellant's answers to the questions waiving his right to counsel and right to remain silent. Appellant admitted to hurting the individuals in the Collier/Hintz house but claimed that he did not remember what happened. Detective Pappas asked Appellant if he believed in God and told him that now was the time to ask for forgiveness. He also confronted him with photographs of the murder victims. Ultimately,

Appellant confessed.

The Commonwealth initially proceeded with this matter as a capital murder case and the court appointed multiple attorneys, including two private attorneys, to aid in Appellant's defense. Appellant sought to suppress both his confession and the evidence collected as a result of finding Appellant via the pinging of his cell phone. The trial court denied Appellant's suppression motion, concluding that Appellant's confession was not coerced and exigent circumstances existed to negate any warrant requirement for the pinging. Thereafter, Appellant agreed to proceed with a non-jury trial in exchange for the Commonwealth's agreement not to seek the death penalty. Following Appellant's non-jury trial, the court convicted Appellant of the aforementioned crimes.

The court sentenced Appellant to three consecutive life sentences for the first-degree murder counts and imposed an aggregate sentence of forty-three years and nine months to eighty-seven years and six months on the kidnapping, robbery, and indecent assault charges. Trial counsel filed post-sentence motions, which the court denied on February 1, 2011. The trial court also granted trial counsel's motion to withdraw and appointed the public defender to represent him on appeal. The Public Defender's Office requested that outside appellate counsel be appointed and the court appointed current counsel. Appellate counsel did not receive his appointment until thirty-one days after the denial of Appellant's post-sentence motion. He therefore filed a PCRA petition seeking the reinstatement of Appellant's direct appeal rights. The court reinstated Appellant's appellate rights nunc pro tunc and this appeal ensued. The court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied and the court filed a Pa.R.A.P. 1925(a) decision. The matter is now ready for our review. Appellant raises the following issues for this Court's consideration.

1. Did the Trial Court err and/or abuse its discretion in failing to suppress Defendant's statements taken by law enforcement which were obtained in violation of the Defendant's rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, sections 8 and 9 of the Pennsylvania Constitution?
2. Did the Trial Court err and/or abuse its discretion in failing to suppress all evidence, as fruit of the poisonous tree, resulting from interception of the Defendant's cellphone signal in that in [sic] the interception and seizure were in violation of the Defendant's rights pursuant to the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, section 8 of the Pennsylvania Constitution because the application/petition, seeking such information, did not comply with the procedural safeguards of the Pennsylvania Wiretap Act and failed to set forth specific and articulable facts to justify the intrusion and seizure?
3. Did the Trial Court err and/or abuse its discretion in failing to arrest judgment on all charges of kidnapping when the Commonwealth failed to present sufficient evidence to sustain their burden of proof as to each element of the crimes as charged?
4. Did the Trial Court err and/or abuse its discretion in failing to arrest judgment on all charges of second degree murder when the Commonwealth failed to present sufficient evidence to sustain their burden of proof as to each element of the crimes as charged?
5. Did the Trial Court err and/or abuse its discretion in admitting, over objection of counsel, the testimony of Samantha Hintz, DePatrick Bogle, and Heberto Pena, regarding purported jealous tendencies of the Defendant toward DePatrick Bogle, Damion Cruz and Christian Flores and the Defendant's alleged desire to fight with DePatrick Bogle in that the same constituted inadmissible prior wrong and bad acts evidence with no evidentiary exception and was irrelevant to the case?

Appellant's brief at 4.

Part I(a)

Appellant's initial challenge is to the court's suppression ruling regarding his statements to law enforcement. Appellant's argument gives rise to separate inquiries: first, whether his Miranda waiver was knowing, intelligent, and voluntary; second, if his confession and statements to police were knowing, intelligent, and voluntary. "[W]hether a confession is constitutionally admissible is a question of law and subject to plenary review." In re T.B., 11 A.3d 500, 505 (Pa.Super. 2010) citing Commonwealth v. Carter, 855 A.2d 885, 890 (Pa.Super. 2004) and Commonwealth v. Nester, 709 A.2d 879 (Pa. 1998).

Appellant first argues that his Miranda waiver was invalid. He sets forth that he was placed in a holding cell with a cold concrete floor for three hours without any socks or shoes. In addition, he asserts that he was held in custody for one hour prior to being placed in the holding cell. According to Appellant, police did not provide him with food or drink or permit him to use the bathroom. Appellant posits that he only offered to give a statement in exchange for socks and shoes. Additionally, Appellant contends that he did not read the Miranda waiver form himself and that Detective Pappas read the form to him. He also points out that it was Detective Pappas who wrote "yes" next to the questions on the Miranda waiver form.

The Commonwealth replies that Appellant's Miranda waiver was voluntary and that police did not coerce him into confessing. In marshaling its position, the Commonwealth maintains that Detective Pappas asked Appellant if he would talk with him and Appellant said that he would if he could have a pair of socks. After Detective Pappas provided Appellant with hospital booties, Appellant was taken to an interview room and read his Miranda warnings. Detective Pappas read the form verbatim and instructed Appellant to stop him and ask him any questions that he may have regarding his rights. According to Detective Pappas, Appellant did not ask him any questions and said that he understood the questions contained in the Miranda waiver. At no point did Appellant request an attorney. Further, Appellant was given the form to read and initialed and signed the Miranda waiver after reviewing it. Based on these facts, the Commonwealth contends that Appellant's waiver of his Fifth Amendment right to counsel and right to remain silent were constitutionally firm.

As we stated in In re T.B.:

this Court does not, nor is it required to, defer to the suppression court's legal conclusions that a confession or Miranda waiver was knowing or voluntary. Instead, we examine the record to determine if it supports the suppression court's findings of fact and if those facts support the conclusion that, as a matter of law, Appellant knowingly and intelligently waived his Miranda rights.
Regardless of whether a waiver of Miranda is voluntary, the Commonwealth must prove by a preponderance of the evidence that the waiver is also knowing and intelligent.
Miranda holds that the defendant may waive effectuation of the rights conveyed in the warnings provided the waiver is made voluntarily, knowingly and intelligently. The inquiry has two distinct dimensions. First[, ] the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a 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 the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.

In re T.B., supra at 505-506 (internal citations and quotations omitted) (emphasis in original).

Initially, we find that the placement of Appellant in a holding cell for three hours without any socks or shoes does not invalidate his waiver as it does not rise to the level of coercion. Appellant's waiver could not be the result of coercion based on any alleged withholding of socks and shoes where police did not in any manner threaten him, act threatening, or indicate that speaking to them was a prerequisite to obtaining covering for his feet. Therefore, we conclude that this aspect of Appellant's argument is meritless.

Part I(b)

Next, Appellant argues that the suppression court erred in failing to find his waiver of his Miranda rights was invalid because Attorney Paul Walker of the Lackawanna County Public Defender's Office presented himself at the Scranton Police Department and asked to speak with Appellant, but was prohibited. Attorney Walker also had contacted the district attorney and requested that police not interview Appellant without him being present. The desk officer at the Scranton police station relayed Attorney Walker's presence to the assistant district attorney at the police station. Attorney Walker was informed that the assistant district attorney would talk to him soon. However, after remaining at the station for an extended period without gaining access to Appellant, Attorney Walker left. He later received a telephone call from the assistant district attorney indicating that Appellant already had been interviewed. Police did not inform Appellant of Attorney Walker's presence or attempts to speak with him.

In regards to Appellant's argument pertaining to Attorney Walker's appearance at the police station, the Commonwealth contends that because Appellant never requested an attorney and Attorney Walker was not retained by Appellant, no constitutional violation occurred. The Commonwealth argues, "the presence or absence of an attorney in the police station is irrelevant to [Appellant's] waiver of his Miranda rights." Commonwealth's brief at 15.

This Court's standard of review in addressing a challenge to the denial of a motion to suppress is

limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole.

Commonwealth v. McAddo, 46 A.3d 781, 783-84 (Pa.Super. 2012).

We begin our resolution by examining Moran v. Burbine, 475 U.S. 412 (1986). In Moran, the defendant was informed of his Miranda rights and executed several written waivers before confessing to murdering a young woman. The defendant did not request an attorney, but while he was in custody, his sister attempted to hire an attorney on his behalf. The attorney contacted police and was told that the defendant would not be questioned until the following day. However, the defendant was questioned that same day and confessed. The Supreme Court held that an accused's decision to waive his right to remain silent does not become involuntary, unintelligent, or unknowing because, unbeknownst to him, an attorney desires to speak with him. As the United States Supreme Court opined in Moran,

whether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent's election to abandon his rights. . . . Granting that the "deliberate or reckless" withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because respondent's voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid.

Id. at 423-424.

In Commonwealth v. Arroyo, 723 A.2d 162 (Pa. 1996), our Supreme Court reasoned that the right against self-incrimination under the Pennsylvania Constitution, found in Article I, Section 9, affords the same protection as its corresponding federal provision, the Fifth Amendment. Id. at 166-167. Hence, Appellant is not entitled to greater protections under the Pennsylvania Constitution in regards to any perceived violation of Miranda. We find that Arroyo is controlling and precludes relief.

In Arroyo, the defendant therein and his girlfriend, Pamela Shenk, arrived at police barracks to be interviewed about the death of Shenk's eight-month-old son. The defendant was told that he was free to leave at any time and was not under arrest. Police read the defendant his Miranda warnings and he signed a waiver form. The defendant eventually admitted to striking the child in the chest and stomach. During this interview, an attorney whom Shenk had called from the police barracks telephoned police and asked to speak with the defendant to determine if he wanted counsel. The attorney was not permitted to speak with the defendant. The defendant argued that the police's failure to inform him that an attorney was attempting to talk to him vitiated his Miranda waiver. Relying on Moran, supra, our Supreme Court found that the police action did not violate the defendant's constitutional right against self-incrimination.

We also observe that the Fifth Amendment right to counsel is a personal right which can only be invoked by the person holding that right. Accordingly, whether an attorney physically appears in an attempt to represent the accused does not alter the fact that it is the accused who must invoke his Fifth Amendment right to counsel. Certainly, the presence of an attorney, coupled with any misstatements made by police regarding the ability to speak with a lawyer, could affect a defendant's voluntary, intelligent, and knowing waiver of his Miranda rights. Nonetheless, there is nothing in the present record that indicates in any manner that Appellant's Miranda waiver was anything less than knowing, intelligent, and voluntary. Police did not inform Appellant that he could not speak with a lawyer or that an attorney did not want to speak with him. Simply put, Appellant was aware of his constitutional right to consult with a lawyer and exercised his right to speak to police without an attorney. Since Appellant never invoked his right to counsel, the fact that an attorney appeared at the police station and that his interview took place while counsel attempted to speak with him does not establish a Miranda violation.

We are cognizant that other jurisdictions have concluded that police action in refusing to allow an attorney access to a client can vitiate a Miranda waiver. See Commonwealth v. McNulty, 937 N.E.2d 16 (Mass. 2010); Commonwealth v. Vao Sok, 761 N.E.2d 923 (Mass. 2002); Commonwealth v. Mavredakis, 725 N.E.2d 169 (Mass. 2000); State v. Roache, 803 A.2d 572, 579 (N.H. 2002); Dennis v. State, 990 P.2d 277 (Okla.Crim.App. 1999); People v. Bender, 551 N.W.2d 71 (Mich. 1996); State ex rel. Juvenile Dept. of Lincoln County v. Cook, 909 P.2d 202 (Or.App. 1996); State v. Simonsen, 878 P.2d 409 (Or. 1994); State v. Haynes, 602 P.2d 272 (Or. 1979); People v. McCauley, 645 N.E.2d 923 (Ill. 1994); State v. Reed, 627 A.2d 630 (N.J. 1993); Bryan v. State, 571 A.2d 170 (Del. 1990); State v. Stoddard, 537 A.2d 446 (Conn. 1988) (under totality of circumstances Miranda waiver may be involuntary where counsel is denied access to client); Roeder v. State, 768 S.W.2d 745 (Tex.App.Hous. 1988); KY.R.Crim.P. 2.14(2); see also Moran v. Burbine, supra at 441 n.10 (Stevens, J. dissenting) (collecting cases). However, in virtually all of these cases, the lawyer was actually retained for the defendant by someone acting on the defendant's behalf, such as a family member. In contrast to many of the cases cited above, counsel herein was never retained.[2] Hence, we conclude that the suppression court did not err in failing to suppress the confession on this basis.

Part I(c)

Appellant also argues that, in addition to his Miranda waiver being invalid, his confession was involuntary as a result of emotional and psychological coercion. The coercive methods allegedly included aggressively accusing Appellant of lying and appealing to Appellant to ask for forgiveness from God since he could not hide his actions from God. Appellant submits that the totality of the circumstances rendered his confession unlawfully coerced. The Commonwealth asserts that there is no evidence that Appellant was physically or emotionally coerced. The Commonwealth acknowledges that Detective ...


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