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Commonwealth v. Becker

Superior Court of Pennsylvania

June 26, 2018


          Appeal from the PCRA Order April 11, 2017 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004681-2011

          BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J. [*]


          NICHOLS, J.

         Appellant Matthew Scott Becker appeals from the order denying his first Post Conviction Relief Act[1] (PCRA) petition seeking relief from his convictions for first-degree murder and third-degree murder of an unborn child.[2]Appellant claims that the PCRA court erred in rejecting his ineffective assistance of counsel (IAC) claims. We affirm.

         Appellant's conviction arises from the shooting death of his pregnant girlfriend, Allison Walsh (Walsh), in the evening of August 12, 2011. Earlier that day, Appellant purchased the firearm used in the shooting, a semiautomatic .22 caliber pistol. The shooting occurred inside the bedroom Appellant and Walsh were sharing in the home of Appellant's parents. Walsh, who was lying in bed, died instantly from a single .22 caliber gunshot wound to her head. Appellant's and Walsh's unborn child died later from traumatic asphyxiation.

         First responders arrived and asked Appellant for the gun. Appellant ultimately retrieved it from underneath the bed. The weapon did not have a magazine inserted. However, when a first responder pulled back on the slide, an unfired cartridge came out of the handle of the pistol.

         Appellant gave two statements to Pennsylvania State Police (PSP) investigators in charge of the case.[3] Appellant, shortly after the shooting, gave his first statement in the early morning hours of August 13, 2011, after waiving his Miranda[4] rights. Appellant asserted that he intended to clean the .22 caliber pistol, but did not know a round was chambered. According to Appellant, he loaded the pistol and began ejecting unfired cartridges from the magazine by operating the pistol's slide. He then removed the magazine from the gun and was attempting to ease the hammer down with his thumb when the weapon accidentally discharged. Appellant also indicated that at some point in the evening, Walsh began to ignore him and read her book, and that he intended to "devil" her, which he clarified, meant to make her talk to him instead of reading her book.

         After Appellant gave his first statement, Appellant was involuntarily committed to a mental health institution for suicidal thoughts based on statements made to the investigator. The investigation into the shooting continued while Appellant was committed. In addition to the one unfired cartridge recovered from the firearm on the night of the incident, one fired .22 caliber casing and a magazine loaded with eight rounds were found in the room in which the shooting occurred. One unfired .22 cartridge was found on an armchair in the same room. A box of .22 caliber ammunition, which was missing eleven cartridges, was near the armchair.

         Investigators also received information that the safety features of the pistol should have prevented it from firing if the magazine was removed and the shooter did not have a full grip on the handle. Additionally, Appellant's former girlfriend Danielle Detweiler and her sister Devon Detweiler contacted the investigators. The Detweilers described incidents in which Appellant pointed a firearm at Danielle and shot her with a gun that shot plastic "airsoft"[5]pellets.

         Investigators subsequently asked Appellant to be re-interviewed, and Appellant agreed. On August 18, 2011, Appellant's father drove Appellant to the PSP barracks. Appellant was advised of his Miranda rights and gave a second statement. During this second interview, investigators confronted Appellant with information that the pistol's safety features should have prevented the accidental discharge. Appellant continued to assert that the weapon accidentally fired, stating it was "dumb fuck luck." N.T. Trial, 3/7/13, at 2538. However, he acknowledged that he could have placed the magazine into the weapon to release the hammer. Appellant also admitted that he and Walsh had arguments and that, in one instance, she became afraid because he either was holding a firearm or there was a firearm near him. He also acknowledged that people could be cruel when they get angry.

         While Appellant was giving his second statement on August 18, 2011, Appellant's family retained Robert Bacher, Esq., to represent Appellant. Attorney Bacher attempted to see Appellant at the PSP barracks while Appellant was being interviewed. However, troopers prevented Attorney Bacher from contacting Appellant.

         Appellant was charged with homicide and murder of an unborn child, and the Commonwealth sought the death penalty. Appellant retained Dennis G. Charles, Esq., and Gavin P. Holihan, Esq. was appointed as co-counsel (collectively, trial counsel).

         Appellant filed an omnibus pretrial motion on May 30, 2012. Appellant sought to suppress his statements to the PSP investigators claiming that he "did not knowingly, intelligently, voluntarily and/or explicitly waive his Miranda rights[.]" Omnibus Pretrial Mot. for Relief, 5/30/12, at 4.

         The trial court held suppression hearings on August 15 and 16, 2012. The trial court entered an order denying Appellant's suppression motion on January 11, 2013. The trial court found that Appellant was not in custody during the first or second interviews and did not invoke his right to silence during the second interview. Trial Ct. Mem. Op. & Order, 1/11/13, at 3 (unpaginated).

         At trial, the Commonwealth asserted that Appellant shot Walsh with the specific intent to kill her. Of relevance to this appeal, the Commonwealth elicited testimony from PSP Corporal Robert Courtright that Appellant appeared to offer his first statement voluntarily. The jury heard an audio recording of Appellant's first statement and both the Commonwealth and the defense questioned Corporal Courtright using transcriptions of Appellant's second statement.

         The Commonwealth also presented the following evidence of Appellant's prior bad acts: (1) testimony from his former girlfriend Danielle Detweiler that Appellant previously pointed a firearm at her and shot her with an "airsoft" pellet gun when they dated; (2) testimony from Devon Detweiler corroborating Danielle's testimony; (3) testimony from Gregory Miller, Appellant's friend, that Appellant verbally abused and threatened Walsh with violence in 2011; and (4) a July 2011 Facebook exchange between Walsh and her sister Megan stating that Walsh wanted to leave Appellant, but Walsh was fearful of Appellant's reaction and believed Appellant would pull a gun on her.

         Appellant did not testify, but called his parents to testify about their observations on the night of the shooting. Appellant also called a PSP trooper to testify about favorable statements Appellant made during his two interviews.

         During closing arguments, the Commonwealth asserted that the objective evidence belied Appellant's statements regarding the facts and circumstances surrounding the shooting and that Appellant changed his story when confronted with evidence during the second interview. According to the Commonwealth, Appellant's prior bad acts indicated that when he became angry, he would brandish firearms or shoot "airsoft" guns. N.T. Trial, 3/11/13, at 2931. The Commonwealth argued that Appellant, in his second statement, indicated that he could become cruel when he was angry. In short, the Commonwealth emphasized that Appellant, having deliberately shot Walsh in the head during a dispute, "lied" in an attempt to cover up the murder. See N.T. Trial, 3/11/13, at 2936-37.

         On March 13, 2013, the jury found Appellant guilty of first-degree murder and murder of an unborn child. The jury deadlocked during the penalty phase, and on March 28, 2013, the trial court sentenced Appellant to life imprisonment for murder and a consecutive twenty to forty years' imprisonment for the murder of an unborn child.

         Appellant took a direct appeal. This Court affirmed the judgment of sentence on March 11, 2015. Commonwealth v. Becker, 1801 MDA 2013 (Pa. Super. filed Mar. 11, 2015) (unpublished mem.).

         In affirming Appellant's conviction, this Court adopted the trial court's opinion that Appellant voluntarily waived his Miranda rights at the second interview. Id. at 1-2; see also Trial Ct. Mem. Op. & Order, 1/11/13, at 3 (unpaginated). This Court also concluded that the trial court properly admitted Danielle and Devon Detweilier's prior bad acts testimony that Appellant previously brandished a firearm and shot Danielle Detweiler with an "airsoft" gun, as well as Miller's testimony regarding Appellant's relationship with Walsh. Specifically, we concluded those matters were "probative to the issue of accident and mistake and degree of guilt in this case" and rebutted Appellant's "characterization of the relationship [with Walsh] and the shooting." Becker, 1801 MDA 2013, at 6, 8.

         However, this Court questioned the admissibility of Walsh's Facebook message to her sister under the state of mind exception to the rule against hearsay. Id. at 9-14. Nevertheless, we determined that the admission of the message was harmless in light of the overwhelming evidence of Appellant's guilt. Id. at 13-14. This Court, in particular, emphasized that there was a live round in the gun after it was fired, which refuted Appellant's contention that he believed the gun was unloaded when he attempted to ease the hammer to a safe position. Id. Appellant did not seek allowance of appeal in the Pennsylvania Supreme Court.[6]

         On April 6, 2016, Appellant timely filed the counseled PCRA petition giving rise to this appeal. The PCRA court held an evidentiary hearing at which both trial counsel testified. Appellant also called Attorney Bacher to testify regarding his attempt to see Appellant during Appellant's second interview with investigators on August 18, 2011.

         On April 11, 2017, the PCRA court entered the order denying Appellant's PCRA petition. Appellant timely appealed and complied with the trial court's order for a Pa.R.A.P. 1925(b) statement.

         Appellant presents the following questions on appeal:

1. Whether trial counsel was ineffective for failing to raise and litigate a pre-trial motion to suppress based upon an invalid Miranda waiver where counsel was denied access to [Appellant] and he was denied access to his lawyer during the police interrogation?
2. Whether trial counsel was ineffective for failing to call Attorney Bacher at both the suppression hearing and at trial?
3. Whether trial counsel was ineffective for failing to object to Cpl. Courtright's testimony when he gave an improper legal opinion that [Appellant's] confession was voluntary?
4. Whether trial counsel was ineffective for failing to request a corpus delicti instruction?
5. Whether trial counsel was ineffective for failing to request a cautionary instruction explaining the limited use of the various 404(b) evidence?

         Appellant's Brief at 4 (capitalization omitted).

         The principles governing our review are as follows:

[O]ur scope of review "is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party." . . . We defer to the PCRA court's factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) (en banc) (citations omitted).

         It is well settled that

[c]ounsel is presumed effective, and in order to overcome that presumption a PCRA petitioner must plead and prove that: (1) the legal claim underlying the ineffectiveness claim has arguable merit; (2) counsel's action or inaction lacked any reasonable basis designed to effectuate petitioner's interest; and (3) counsel's action or inaction resulted in prejudice to petitioner.

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations omitted). The petitioner must plead and prove all three prongs, and the failure to establish any one prong warrants denial of an IAC claim. Id.

         Appellant's first two arguments, which we address jointly, allege that the PCRA court erred in denying Appellant's IAC claims that trial counsel were ineffective for failing to litigate properly meritorious suppression issues. Appellant asserts that he could not have knowingly or intelligently waived his Miranda rights for his second statement on August 18, 2011, because Attorney Bacher was prevented from contacting Appellant during the interview. Appellant further contends that trial counsel should have called Attorney Bacher to testify at the suppression hearing to support this claim.

         The PCRA court opined that Appellant's claims lacked merit because Appellant was given Miranda warnings before his second statement, did not request a lawyer, and was not aware that Attorney Bacher was at the barracks. PCRA Ct. Op. & Order, 4/11/17, at 6, 8. The court further suggested that Appellant's family could not have invoked Appellant's right to counsel and that Attorney Bacher's testimony at the suppression hearing would have been irrelevant. For the reasons that follow, we agree with the PCRA court's analysis.

         The validity of a waiver of Miranda rights is a question of law. Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012) (citations omitted). A defendant's waiver must be "voluntary, in the sense that [the] defendant's choice was not the end result of governmental pressure[ and] knowing and intelligent, in the sense that it was made with full comprehension of both the nature of the right being abandoned and the consequence of that choice." Commonwealth. v. Pruitt, 951 A.2d 307, 318 (Pa. 2008) (citation omitted).

         "Miranda warnings are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect's] right against compulsory self-incrimination [is] protected.'" Moran v. Burbine, 475 U.S. 412, 424 (1986) (citations omitted). Under the Fifth Amendment, the right to counsel protects a defendant's "desire to deal with the police only through counsel in order to counteract the inherent pressures of custodial interrogation." Commonwealth v. Santiago, 599 A.2d 200, 202 (Pa. 1991). That right is personal and cannot be invoked by another party. Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997). The privilege against self-incrimination in Article I, Section 9 of the Pennsylvania Constitution "tracks the protection afforded under the Fifth Amendment." Commonwealth v. Arroyo, 723 A.2d 162, 166 (Pa. 1999) (citations omitted).

         In at least two decisions in the 1970s, the Pennsylvania Supreme Court condemned the practice of preventing an attorney from contacting a defendant during an interrogation. In Commonwealth v. Harmon, 269 A.2d 744 (Pa. 1970) (per curiam), the Court affirmed a trial court's suppression of a confession concluding that the facts of that case "disclose[d] the use of tactics in the securing of the challenged statement which we cannot condone." Id. at 746. However, the Court expressly declined to reach "the issue of whether or not the challenged statement was secured under impermissible constitutional circumstances[.]" Id.

         In Commonwealth v. Hilliard, 370 A.2d 322 (Pa. 1977), a plurality of the Court asserted: "If counsel has expressed a desire to be present during interrogation, a waiver of counsel obtained in counsel's absence should be held invalid as a matter of law." Id. at 324 (Roberts J., with O'Brien and Manderino, JJ. joining). In support, the Hilliard plurality relied on prior dissenting Pennsylvania Supreme Court opinions, as well as a decision of the New York Court of Appeals. Id. (citing Commonwealth v. Yates, 357 A.2d 134, 136 (Pa. 1976) (Roberts, J. dissenting, joined by Nix and Manderino, JJ.), Commonwealth v. Hawkins, 292 A.2d 302, 309 (Pa. 1972) (Nix, J. dissenting, joined by Roberts and Manderino, JJ.), and People v. Hobson, 348 N.E.2d 894 (N.Y. 1976)).

         Subsequently, in 1986, the United States Supreme Court clarified the Fifth Amendment right to counsel in Moran. In that case, the defendant waived his Miranda rights before an interrogation, but police officers had prevented an attorney, whom the defendant's sister attempted to retain, from contacting the defendant during the ensuing interrogation. Moran, 475 U.S. at 417-18. The defendant was unaware of his sister's attempt to secure counsel for him or counsel's attempt to contact him. Id. at 417.

         Following his conviction for murder and an unsuccessful appeal in state court, the defendant sought habeas corpus relief in the federal courts. Id. at 418-19. The defendant asserted, in part, that the conduct of the police violated his Fifth Amendment rights. Id. at 419. A circuit court of appeals agreed with the defendant and ordered a new trial, but the United States Supreme Court reversed the circuit court's order.

         The Moran Court concluded that the refusal to allow the attorney to see the defendant during the interrogation did not affect the validity of the defendant's waiver of his Miranda rights. Id. at 421.

Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. . . . Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Id. at 422-23 (footnote omitted).

         The Moran Court rejected the circuit court's determination that the deliberate conduct of the police officers in preventing an attorney from contacting the defendant was relevant to the defendant's waiver of his Miranda rights. Id. at 423.

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.

Id. at 423-24.

         The Moran Court further concluded that it would be inappropriate, under Miranda, to require the police to inform a defendant that an attorney was attempting to reach him. Id. at 425. The Court emphasized that Miranda carefully balanced society's interests "in finding, convicting, and punishing those who violate the law" with the "substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion." Id. at 426. The Court concluded that requiring the police to advise a suspect that an attorney wanted to contact him would only minimally advance the policy of dispelling the coercion inherent in a custodial interrogation, while substantially burdening society's interests in legitimate law enforcement. Id. at 427.

         Pennsylvania courts have adopted Moran and rejected claims that a Miranda waiver was invalid because the police failed to inform a defendant that an attorney was attempting to contact him. The Pennsylvania Supreme Court in Arroyo and this Court, in Commonwealth v. Rushing, 71 A.3d 939 (Pa. Super. 2013), rev'd on other grounds, 99 A.3d 416 (Pa. 2014), have concluded that Moran foreclosed similar arguments based on the federal constitution.[7] See Arroyo, 723 A.2d at 166; Rushing, 71 A.3d at 951.

         Instantly, although Appellant relies on cases such as the per curiam decision in Harmon and plurality decision in Hilliard, the more recent Pennsylvania decisions on the Fifth Amendment right to counsel follow the approach set forth in Moran. See Arroyo, 723 A.2d at 166; Rushing, 71 A.3d at 951. Accordingly, we agree with the PCRA court's conclusion that the conduct of the PSP troopers who prevented Attorney Bacher from contacting Appellant did not vitiate Appellant's otherwise knowing, intelligent and voluntary waiver of his Miranda rights. Thus, we discern no basis to disturb the trial court's conclusion that Appellant failed to establish arguable merit to his first two IAC claims.[8]

         Appellant next contends that trial counsel were ineffective for failing to object to Corporal Courtright's testimony indicating that Appellant's first statement was given voluntarily. A more detailed background to this claim follows. During trial, the Commonwealth called Corporal Courtright. The corporal testified that on August 12, 2011, he received a report of the shooting and went to the PSP barracks in Ephrata. There, the corporal obtained information about the shooting, as well as a report that troopers had taken Appellant and Appellant's father into custody and transported them to the PSP barracks in Harrisburg. The corporal went to the PSP barracks at Harrisburg and met with Appellant.

         Corporal Courtright and Trooper Chadwick Roberts interviewed Appellant beginning at 1:45 a.m. on August 13, 2011. N.T. Trial, 3/5/13, at 1796. When describing Appellant's waiver of his Miranda rights, the following exchange occurred:

[Commonwealth's counsel]. When these rights were being reviewed with [Appellant], did he indicate his ...

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