J-S31023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LESTER LERINGO JOHNSON

Appellant No. 888 MDA 2015

Appeal from the Judgment of Sentence April 20, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001084-2013

BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED JULY 26, 2016

Lester Leringo Johnson appeals from the judgment of sentence 

imposed on April 20, 2015, in the Court of Common Pleas of Lancaster 

County. Johnson was found guilty in a non-jury trial of one count of criminal 

homicide-murder in the third degree, three counts of endangering the 

welfare of children (EWOC), and two counts of aggravated assault.1 The trial 

court sentenced Johnson to an aggregate term of 22 to 44 year’s 

incarceration.2 Johnson contends (1) the trial court erred in denying his 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(c), 4304(a)(1), and 2702(a)(1), respectively.

 

2 The trial court imposed a sentence of incarceration of 20 to 40 years on the 

the third degree murder charge (Count One), and imposed concurrent 

sentences of incarceration of one year to two years on the EWOC charges at 

Counts Two and Three, and of two years to four years on the EWOC charge 

(Footnote Continued Next Page)
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suppression motion “where [his] statement became involuntary at the point 

when police responded to his request to use the restroom by asking him to 

wait, in order to coerce a confession from him,” and (2) the trial court 

“illegally impose[d] sentences for Counts Two and Three of the Information, 

for two first degree misdemeanor charges of [EWOC], where these two 

charges should have merged with Count Four, the third degree felony charge 

of [EWOC].” Johnson’s Brief at 5. Based upon the following, we affirm in 

part and vacate in part.

The events that occurred prior to Johnson’s arrest were summarized 

by the trial court, as follows:

On January 12, 2013, at approximately 3:27 in the 

morning, R.K., the two-year–old daughter of [Johnson]’s 

paramour, Jessica Bachman, was taken by ambulance to 

Lancaster General Hospital where she subsequently passed 

away. 

At approximately 3:53 the same morning, Officer David 

Hershiser and Officer Justin Miller of the Lancaster City Police 

arrived at [] Street to monitor the home where [Johnson], Ms. 

Bachman, and four children, including R.K., resided. Officer 

Hershiser “understood there was a young girl that was taken to 

the hospital that was sick.” On at least one occasion, while 

engaged in casual conversation with [Johnson], Officer Hershiser 

asked [Johnson] what had happened to R.K. Officer Hershiser 

left [] Street at approximately 6:00 a.m. At that point, the 

officers at the home did not know that R.K. had died or that a 

crime had been committed, and [Johnson] was not considered a 

suspect. 

(Footnote Continued) _______________________

at Count Four, which were all made to run consecutively to the sentence 

imposed on Count One. The aggravated assault charges merged for 

sentencing purposes. See N.T., 4/20/2015, at 24–25.
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Officer Andrew Nauman of the Lancaster City Police arrived 

at the residence at approximately 6:00 a.m. At 7:15 a.m., Nancy 

Elaabar, the grandmother of two of the children in the house, 

arrived at the residence and informed [Johnson] that R.K. had 

passed away. [Johnson] became upset and agitated. [Johnson’s] 

movement was not restricted by the officers at any point during 

this time. 

At 8:20 a.m., Lieutenant Michael Winters and Detective 

Gareth Lowe arrived at the home. Detective Lowe introduced 

himself to [Johnson] and explained he would like to speak to 

[Johnson] about any information he may have surrounding the 

circumstances of R.K.’s death. [Johnson] agreed to go to the 

police station with Detective Lowe and Lieutenant Winters to 

speak with them about what had happened to R.K. Detective 

Lowe gave [Johnson] a ride to the station. 

At the station, [Johnson] signed the visitor log, and 

Detective Lowe and Lieutenant Winters accompanied him to the 

public elevator, where they went to the third floor. Detective 

Lowe showed [Johnson] where the restrooms were and 

explained that they would be going to the secure side of the 

floor. Detective Lowe also explained to [Johnson] how he could 

get back to the public area from the interview room in the secure 

area. [Johnson] asked for a cup of coffee, which Detective Lowe 

provided, and Detective Lowe explained that the interview would 

be recorded. [Johnson] indicated he understood he was free to 

leave at any time and that he had given consent to have the 

interview recorded. [Johnson] was not given any Miranda 

[Miranda v. Arizona, 384 U.S. 436 (1966)] warnings on 

January 12, 2013. 

The January 12, 2013, interview lasted approximately an 

hour and a half. At approximately 10:15 a.m., while the 

detectives were in the hallway, [Johnson] opened the door and 

asked how much longer the interview would last and indicated 

he would like to go home. After a short conversation, [Johnson] 

agreed to let the detectives confer to find out if they had 

obtained all necessary information. Detective Lowe asked 

[Johnson] if he had been treated fairly and asked if he could 

speak with [Johnson] again. [Johnson] answered both questions 

“yes.” At that point, the detectives and [Johnson] exchanged 

contact information and set up another interview for a few days 
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later. Detective Lowe then drove [Johnson] home. [Johnson] was 

not placed under arrest on January 12, 2013. 

On January 14, 2013, Detective Lowe called Ms. Bachman 

to speak to her about coming back to the police station to speak 

with the detectives. Ms. Bachman agreed to come to the police 

station with [Johnson] and Ms. Elaabar. Ms. Bachman, [Johnson] 

and Ms. Elaabar arrived at the police station on their own at 

approximately 3:45 in the afternoon and all three signed the 

visitor log. Detective Lowe asked the three if they would be 

willing to come to the third floor of the station, and they said 

they would. Detective Lowe then took them on the public 

elevator to the third floor and explained that they would be 

taken to the public waiting room until someone came to talk to 

them in the secure area of the building. Lieutenant Winters and 

Detective Randall Zook walked with [Johnson] to the secure area 

of the building to a different interview room than the one used 

on January 12, but in the same section of the violent crime and 

property crime division. As was the case on January 12, 2013, 

[Johnson] consented to having the interview recorded. 

Lieutenant Winters explained to [Johnson]:

we didn’t get to finish talking to you and I wanted to 

finish just to ask you some other stuff just to kind a [sic] 

follow up with what we discussed the other day.... there’s 

a little concern about some of the injuries just ... and like 

how [R.K.] was feeling and stuff before all this happened 

on Friday. And just because of that they ... they want us 

to cover all of our bases with you and one of the things 

that we have to do is advise you of or [sic] rights, okay.

Lieutenant Winters asked [Johnson] about his background, 

including his name, date of birth and education. [Johnson] was 

then given his Miranda warnings, prompting him to ask if he 

was being charged with a crime. Lieutenant Winters stated it did 

not and that the detectives needed to gather more information. 

The detectives reviewed the Miranda rights form with [Johnson] 

explaining his constitutional rights, and [Johnson] signed the 

form indicating he understood his rights and was willing to speak 

to the detectives. [Johnson] also stated that he understood he 

was free to stop answering questions at any time and that no 

threats or promises were made to him. [Johnson] was 

responsive to all of the detectives’ questions and did not engage 

in any bizarre behaviors during the interview. [Johnson] did not 
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appear to be under the influence of alcohol or a controlled 

substance.

[Johnson] was interviewed for approximately two hours 

and fifteen minutes. At approximately 6:00 p.m., Detective Zook 

and Lieutenant Winters left the room to confer with other 

officers. Before leaving, Lieutenant Winters asked [Johnson] if he 

wanted a cigarette, something to drink, or anything else. 

[Johnson] asked for a soda. At no time before or during the 

break did [Johnson] state he needed to use the restroom, nor 

did he get up and attempt to leave the interview room. 

Approximately 10 minutes later, the detectives returned, 

gave [Johnson] a soda and resumed the interview. Lieutenant 

Winters told [Johnson] he did not believe R.K.’s death was 

accidental and that Ms. Bachman had stated that [Johnson] had 

inflicted the injuries.

[W]e started to be a little more direct about the interview 

with the questions and [[Johnson’s]] body language 

started to change. He put his head down and put his 

hands over his face. And I started to ask some questions 

about the - that we needed to know what really 

happened. As his body language changed he started to 

breathe differently and his breathing got much deeper 

and he would exhale and his chest would kind of quiver 

when he exhaled and it indicated to me he was kind of 

stressed and upset. We were in the interview for less 

than five minutes at this point and he start [sic] to speak 

real quietly. He began to get more emotional without 

saying anything, but I could tell physically he appeared 

more emotional. At some point he whispered, I would like 

to use the bathroom or I need to use the bathroom.

And my response was, could you give me five more 

minutes? We really need to know what happened.

(N.T., January 29, 2014, 45–46 (testimony of Lieutenant 

Winters)). [Johnson] asked once again to use the bathroom, 

and Lieutenant Winters again asked for five more minutes. 

[Johnson] then made several inculpatory statements, admitting 

he struck R.K. several times in the head and stomach the day 

before her death.
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At approximately 6:38 p.m., detectives took another break 

and escorted [Johnson] to the bathroom. At 7:00 p.m., the 

interview concluded and [Johnson] was placed under arrest. 

Trial Court Opinion, 6/24/2014, at 1–7 (most record citations omitted) 

(footnotes omitted). 

On March 19, 2015, Johnson was found guilty by the trial judge of the 

above-stated charges, and, following sentencing, this appeal followed.

3

Johnson first contends that the trial court erred in denying his 

suppression motion because his statement became involuntary at the point 

when police told him to wait in response to his request to use the bathroom. 

The principles that guide our review are well settled: 

In reviewing a suppression court’s denial of a suppression 

motion,

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. Where the suppression court’s factual findings 

are supported by the record, we are bound by these 

findings and may reverse only if the court’s legal 

conclusions are erroneous.

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa. 

2010) (citing Commonwealth v. Bomar, 573 Pa. 426, 826 

A.2d 831, 842 (Pa. 2003)). Nonetheless, we exercise plenary 

review over the suppression court’s conclusions of law. Id. 

(citations omitted).

Commonwealth v. Johnson, 107 A.3d 52, 93 (Pa. 2014).

____________________________________________

3

Johnson, having been granted an extension of time to file a Pa.R.A.P. 

1925(b) statement, timely filed his concise statement on June 17, 2015.
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When deciding a motion to suppress a confession, the 

touchstone inquiry is whether the confession was 

voluntary. Voluntariness is determined from the 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.

Commonwealth v. Nester, 551 Pa. 157, 162-163, 709 A.2d 

879, 882 (1998) (citations and footnote omitted).

When assessing 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.

Id. at 164, 709 A.2d at 882 (citations omitted). “The 

determination of whether a confession is voluntary is a 

conclusion of law and, as such, is subject to plenary review.” 

Commonwealth v. Templin, 568 Pa. 306, 310, 795 A.2d 959, 

961 (2002), citing Nester, supra.

Commonwealth v. Harrell, 65 A.3d 420, 434 (Pa. Super. 2013).

In this case, the trial court opined:

[Johnson], Ms. Bachman and Ms. Elaabar came to the 

police station on their own on the afternoon of January 14, 2013. 

(N.T., January 29, 2014, 57). The detectives were dressed in 

suits, and [Johnson] was not frisked or forced to go into the 

interview room. (Id. at 30-31, 34-35). [Johnson] did not appear 

to be under the influence of drugs or alcohol or sleep deprived. 

(Id. at 33-34). At all times prior to making the inculpatory 

statements, [Johnson] was treated as a visitor and was free to 

leave at any time. Lieutenant Winters explained to [Johnson] 

that they were going to an interview room “much like [they] did 
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the other day [January 12],” when it was explained to [Johnson] 

he was free to leave at any point. (Id. at 65). Before the 

detectives asked [Johnson] any questions, Lieutenant Winters 

went over his Miranda warnings with [Johnson] and told him he 

was free to stop answering questions at any time he wished. 

(Commw. Ex. 7, p. 3). [Johnson] indicated he understood this. 

(Id.). 

When the detectives took a break at approximately 6:00 

p.m., Lieutenant Winters asked [Johnson] if he could get 

[Johnson] “anything, a cigarette, something to drink? You sure 

you want a soda or some water or anything?” (Id. at pp. 79-80). 

[Johnson] never indicated he needed to use the restroom, nor 

did he get up to leave the interview room while the officers were 

taking a break as he had done two days earlier. 

When the interview resumed, Lieutenant Winters 

repeatedly asked [Johnson] what had happened to R.K. and if 

[Johnson] had done something to R.K. that he “wish[ed] [he] 

could take back.” (Id. at 80-82). While [Johnson] remained 

silent, he placed his head in his hands and began to get 

emotional. (See Commw. Ex. 8 (recording of the January 14, 

2013, interview)). After [Johnson] asked to go to the bathroom 

the first time, Lieutenant Winters stated: 

Can you...can you just give me five-minutes. Can you 

just give me five-minutes. I’m...l’m I need to know 

l’m...I’m just I don’t understand I need to know. What 

happened?

[Defendant]: Can I use the bathroom? I tell you when I 

get back I promise.

[Lieutenant Winters]: Lester can you give me fiveminutes. We can’t help you if you don’t tell us man this is 

gonna eat you up. Help us understand. What happened? 

(Commw. Ex, 7, p. 82). At that point, [Johnson] made the 

inculpatory statements. [Johnson’s] request to use the bathroom

was never refused, and at no point did he stand up, walk around 

and open the door as he had done in the January 12, 2013, 

interview or wet himself. (N.T., January 29, 2014, 47). At the 

beginning of the interview, it was explained to [Johnson] that he 

was free to stop answering questions at any time he wished. 
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[Johnson] did not indicate he wished to stop answering the 

detectives’ questions until he used the bathroom, but instead he 

continued to speak with them and made the inculpatory 

statements. 

[Johnson] maintains that because the detectives continued 

to tell him they did not believe him and kept asking [Johnson] 

what had happened, the questioning was coercive. This 

argument is without merit. “Repeatedly asking an accused to be 

truthful without implying or making direct promises or threats to 

the person does not result in a coerced confession.” 

[Commonwealth v.] Rushing, 71 A.3d 939, 954 [(Pa. Super. 

2014)]. The record is devoid of any evidence that Lieutenant 

Winters or Detective Zook threatened [Johnson] or made any 

promises to him during the January 14, 2013, interview. 

“Encouraging a suspect to cooperate with the investigation and 

answer questions honestly is a permissible interrogation tactic.” 

Nester, at 167, 70.9 A.2d at 884.

[Johnson] has a ninth grade education, but completed his 

GED in 2006. (Commw. Ex. 7, p. 2). [Johnson’s] answers to the 

detectives’ questions were responsive, and he reviewed his 

Miranda rights with detectives and signed the form indicating he 

understood his rights. There is no evidence that either of the 

detectives acted inappropriately or in a threatening manner. 

[Johnson] was offered a drink, which he accepted, and a break 

to smoke, which he refused. [Johnson] was free to use the 

bathroom during the break, but chose not to do so. (N.T., 

January 29, 2014, 89-90). There was no evidence that [Johnson] 

was not of sound mind when he waived his Miranda rights and 

spoke with the detectives. Additionally, there is nothing in the 

record indicating [Johnson] was psychologically unable to deal 

with the accusatory statements made by the police. 

After analyzing the factors set forth in Harrell, 65 A.3d 

420, 434-35 (Pa. Super. 2013) (citing Nester, 551 Pa. at 164, 

709 A.2d at 882), and considering the totality of the 

circumstances, the Court concludes that [Johnson’s] confession 

was knowing and voluntary.

Trial Court Opinion, 6/24/2014, at 8–11.
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We have carefully reviewed the notes of testimony of the suppression 

hearing and the recordings of the January 12, 2013 and January 14, 2013,

police interviews. Contrary to the argument of Johnson, we find the trial 

court properly ruled that the officers’ continued questioning after he 

requested a bathroom break was not so unduly coercive as to give rise to an 

involuntary confession. As the trial court discussed, Johnson’s request to 

use the bathroom was never refused or denied, Johnson did not indicate that 

he wanted to stop answering questions until he used the bathroom, and the 

officers’ manner was not inappropriate or threatening. The trial court’s 

analysis properly considered the totality of the circumstances, and the 

record supports the court’s conclusion that Johnson’s confession was 

voluntary. Accordingly, Johnson’s argument that the trial court erred in 

denying the suppression motion fails.

In the second argument raised by Johnson he asserts the trial court 

erred in failing to merge the three EWOC counts set forth at Counts Two and 

Three into the EWOC count set forth at Count Four. As already stated, 

Johnson was charged with three counts of EWOC under 18 Pa.C.S. § 

4304(a)(1). Johnson contends all of the actions charged in Counts Two and 
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Three were included in the “course of conduct” allegation in Count Four, and 

therefore, Counts Two and Three should have merged into Count Four.4

“Whether Appellant’s convictions merge for sentencing is a question 

implicating the legality of Appellant’s sentence. Consequently, our standard 

of review is de novo and the scope of our review is plenary.” 

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

Pennsylvania’s merger doctrine is codified at Section 9765 of the 

Sentencing Code, as follows:

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the 

other offense. Where crimes merge for sentencing purposes, the 

court may sentence the defendant only on the higher graded 

offense.

42 Pa.C.S. § 9765.

Regarding EWOC, the Crimes Codes provides:

(a) Offense defined.

(1) A parent, guardian or other person supervising the 

welfare of a child under 18 years of age, or a person that 

employs or supervises such a person, commits an offense 

if he knowingly endangers the welfare of the child by 

violating a duty of care, protection or support.

____________________________________________

4

In making this argument, Johnson’s counsel notes that “sentences for all 

three counts of endangering welfare of children were imposed concurrently.” 

Johnson’s Brief, at 22.
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...

(b) Grading. — An offense under this section constitutes a 

misdemeanor of the first degree. However, where there is a 

course of conduct of endangering the welfare of a child, the 

offense constitutes a felony of the third degree.

18 Pa.C.S. § 4304. “In order to be graded as a third degree felony, the 

Commonwealth must allege in the information and present evidence at trial 

of the additional factor of ‘course of conduct’.” Commonwealth v. Popow, 

844 A.2d 13, 17 (Pa. Super. 2004). 

The criminal information, which we have redacted, read, in relevant 

part:

Count 2 – Endangering Welfare of Children –

Parent/Guardian/Other Commits Offense – (M1) 

Offense Date: 1/11/13 18 [Pa.C.S.] § 4304 §§ A1

... TO WIT: Actor, while in the role of supervising the welfare of 

[R.K.], DOB: [] knowingly endangered the welfare of [R.K.] by 

striking her on the head with a closed fist on 1/11/2013 at [] 

Street, Lancaster, PA. This act caused traumatic injury to 

[R.K.’s] right eye, which included retinoschesis, blindness, retinal 

hemorrahing, and brain injury. Said offense occurred at [] 

Street, Lancaster City, Lancaster County, PA.

Count 3 – Endangering Welfare of Children –

Parent/Guardian/Other Commits Offense – (M1) 

Offense Date: 1/11/13 18 [Pa.C.S.] § 4304 §§ A1

... TO WIT: Actor, while in the role of supervising the welfare of 

[R.K.], DOB: [] knowingly endangered the welfare of [R.K.] by 

kicking her on the abdomen with his foot repeatedly on 

1/11/2013 at [] St., Lancaster, PA. This act caused traumatic 

injury to [R.K.’s] abdomen and internal organs to include the 
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large bowel, pancreas, and mesentery root. Said offense 

occurred at [] Street, [Lancaster City,] Lancaster County, PA.

Count 4 – Endangering Welfare of Children –

Parent/Guardian/Other Commits Offense – (F3)

Offense Date: 1/11/13 18 [Pa.C.S.] § 4304 §§ A1

... TO WIT: Actor, while in his role of supervising the welfare of 

[R.K], DOB:[] knowingly endangered the welfare of [R.K.] by 

striking her on the head with a closed fist and kicking her on the 

abdomen three (3) times on 1/11/2013 at []St., Lancaster, PA. 

These acts caused traumatic injury to [R.K.’s] right eye, 

abdomen, brain, and underlying organs resulting in her death on 

January 12, 2013. Actor did not seek any medical 

attention/treatment for [R.K.] between approx. 0800 hours 

1/11/13 – 0310 hours, 1/12/13. Said offense occurred at [] 

Street, [Lancaster City,] Lancaster County, PA. 

Criminal Information, 3/15/203, at 1.

Johnson asserts that “because all three acts, as charged, were needed 

to constitute felony three endangering welfare of children, the misdemeanor 

counts, which each included one of the three acts which together comprised 

the course of conduct, necessarily should have merged with the felony 

count.” Johnson’s Brief, at 22. We disagree with Johnson’s premise that 

Counts Two and Three merge with Count Four. However, we conclude that 

Counts Two and Three should have merged for sentencing purposes.

Count Four alleges a “course of conduct” by stating that Johnson “did 

not seek any medical attention/treatment for [R.K.] between approx. 0800 

hours 1/11/13–0310 hours, 1/12/13,” after “striking R.K. on the head with a 

closed fist” and “kicking her on the abdomen with his foot repeatedly.” 

Count Four was charged for Johnson’s failure to seek medical treatment for 
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R.K. over the nighttime hours and early morning hours of January 11 to 

January 12, 2013. We are satisfied that the Count Four EWOC charge is for 

criminal conduct separate and distinct from the Count Two EWOC charge for 

striking R.K. on the head with a closed fist, and the Count Three EWOC 

charge for kicking R.K. on the abdomen repeatedly. 

We note, however, that although Counts Two and Three set forth 

different facts, these EWOC charges both arose out of a single criminal act, 

and the statutory elements of offense are the same. Specifically, Johnson 

confessed that he “[j]ust lost my cool and I hit her upside the head. And 

she fell. And I kicked her in the stomach.” Commonwealth Exhibit 7, at 83. 

Therefore, we find that the sentences for Count Two and Count Three should 

merge, being that the second condition for merger, that “all of the statutory 

elements of one offense are included in the statutory elements of the other 

offense[,]” is met. As we conclude the merger doctrine does apply to Counts 

Two and Three, we vacate the sentence imposed on Count Three. 

Nonetheless, there is no need to remand for resentencing, since the court 

imposed concurrent sentences on Counts Two, Three and Four. 

Judgment of sentence affirmed in part, vacated in part as to Count 

Three. Jurisdiction relinquished.

Judge Strassburger joins this Memorandum.

Judge Shogan files a Concurring and Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2016