from the PCRA Order April 11, 2017 In the Court of Common
Pleas of Lancaster County Criminal Division at No(s):
BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.
Matthew Scott Becker appeals from the order denying his first
Post Conviction Relief Act (PCRA) petition seeking relief from his
convictions for first-degree murder and third-degree murder
of an unborn child.Appellant claims that the PCRA court erred
in rejecting his ineffective assistance of counsel (IAC)
claims. We affirm.
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.
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.
gave two statements to Pennsylvania State Police (PSP)
investigators in charge of the case. Appellant, shortly after the
shooting, gave his first statement in the early morning hours
of August 13, 2011, after waiving his
Miranda 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
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.
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
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
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
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).
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
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).
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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
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?
Brief at 4 (capitalization omitted).
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).
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.
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
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.
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).
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
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
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)).
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.
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.
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
Id. at 422-23 (footnote omitted).
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.
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.
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. See Arroyo, 723 A.2d at 166;
Rushing, 71 A.3d at 951.
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
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.
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 ...