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

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD JAMES NEELAN JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 890 MDA 2023 Appeal from the Judgment of Sentence Entered May 23, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP

- 36

- CR

- 0000948

- 2021

BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E. *
MEMORANDUM BY OLSON, J.: FILED: MAY 15, 2024
Appellant, Richard James Neelan, Jr., appeals from the judgment of
sentence entered on May 23, 2023. We affirm.
On February 12, 2021, the West Hempfield Township Police filed a criminal complaint against Appellant , charging Appellant with committing
sexual crimes against the victim, T. W. (“the Victim”) , on either December 7

or 8 , 2019

. Specifically, the complaint alleged , Appellant placed his fingers in
the Victim’s vagina while she was sleeping

. See Criminal Complaint, 2/12/21,

at 2.
Appellant filed a pretrial motion, where he sought to suppress
incriminating statements he made to the Victim , during a police

- recorded,
January 28, 2021 , telephone call between himself and the Victim. Regarding

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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the factual basis for this suppression motion, Appellant noted that, on

December 9 , 2019, the Victim reported the sexual assault to Detective
Thomas Ziegler of the West Hempfield Township Police Department.
Appellant’s Suppression Motion, 11/3/21, at 1. The next day, Appellant
voluntarily ap peared at the West Hempfield Township Police Department
building and spoke with Detective Ziegler in a non

- custodial setting, with
Detective Ziegler informing Appellant at the outset that: “ [y]ou are not under

arrest at this time[];” “you’re free to leave whenever you want to;”
“[a]nything that you tell me today is of your own free will;” and, “[y]ou can
tell me whatever you want to or you don’t have to say anything at all

. ” See

id

. ; see also Trial Court Order, 6/ 14/22, at 3.
Although Appellant did not seek to suppress anything he said during the
December 10, 2019 meeting with Detective Ziegler, Appellant observed that,
at the end of the interview, he and Detective Ziegler had the following
exchange:

[ Detective Ziegler ] : Okay. Yeah. Like I said, I'll get back to you. I'll try to keep you

– [Appellant]: Yeah.
[Detective Ziegler]:

-- abreast.
[Appellant] : Because at this point [the Victim] should probably going to be just pressing charges so it's like.
[Detective Ziegler]: It sounds

-- well, like I said, ultimately my job is to gather the information

– [Appellant] : Yes.J

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- [Detective Ziegler]:

-- from what you and she tell me

– [Appellant] : Yeah.
[Detective Ziegler]:

-- and present it to the district attorney who will make a decision if charges need to be brought

– [Appellant] : Or not brought.
[Detective Ziegler]:

-- yes, would not be filed or not.
[Appellant] : Yeah.
[Detective Ziegler]: That's what

-- that's what we're d oing here today.
[Appellant]: Yeah.
[Detective Ziegler]: And if that happens, you know

– [Appellant] : That's fine. I need a lawyer and I'll just figure it out.
[Detective Ziegler]: And that's what I would suggest, I
mean.
[Appellant]: Yeah. A lawyer is $600

-- you know, $500 or $600 (indiscernible).
[Detective Ziegler]: Well...
[Appellant]: (Indiscernible.)
[Detective Ziegler]: Don't

-- don't worry about it right this minute.
[Appellant] : Yeah.
[Detective Ziegler]: But down the road if it comes

– [Appellant] : Yeah, I'm not worrying about it like right now, honestly. If the charges do present, yeah, you know

–J

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- [Detective Ziegler]: Yeah.
[Appellant]:

-- obviously it's smart.
[Detective Ziegler]: So, yeah, definitely you want to talk to an attorney

– [Appellant]: Yeah.
[Detective Ziegler]:

-- but other than that.
[Appellant]: Because obviously I'm probably going to lose my job, lose my house, lose my daughter. I'll lose everything, yeah, so.
[Detective Ziegler]: Yeah.
[Appellant] : Absolutely everything, yeah.
[Detective Ziegler]: You'd certainly want to seek representation if charges were brought.
[Appellant] : Yeah.
[Detective Ziegler]: Certainly, someone to represent you and back you up there.
[Appellant]: Yeah.
[Detective Ziegler]: Let's not put the cart before the horse. Let's just do what we have to do now.
[Appellant]: Yeah.
[Detective Ziegler]: And I'll be in touch with you.
[Appellant]: Sounds good.
[Detective Ziegler]: You go do what you got to do to make things right in your world.
[Appellant]: Yeah.
[Detective Ziegler]: And your daughter's life.J

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- 5

- [Appellant]: Yeah.
[Detective Ziegler]: And, you know, whatever you got to do to make things stable there again.
[Appellant]: Yeah.
[Detective Ziegler]: And I'll be in contact with you.
[Appellant]: That's fine.
[Detective Ziegler]: Like I said, I'm not going to be reaching out to [your wife] for anything. I don't see any reason to have to talk to her about this. She wasn't a witness or didn't observe anything, so.
[Appellant]: Yeah.
[Detective Ziegler]: Well, other than that anything for me? Any questions?
[Appellant]: No.
[Detective Ziegler]: Okay

. [Interview ends].

N.T. Interview, 12/10/19, at 28

- 32.
Within the suppression motion, Appellant claimed that Detective Ziegler
“advis[ed Appellant] that he did not yet need counsel” during the December
10, 2019 interview and, in doing so, “denied [ Appellant ] the unfettered

evaluation as to his need for counsel.” Appellant’s Suppression Motion,
11/3/21, at 4

. Appellant further claimed that, had Appellant “not been
dissuaded from seeking counsel, counsel [would] have informed [Appellant]
of the potential for a recorded wire phone call between the alleged victim and

himself.” Id. Accordingly, Appellant claimed, the incriminating statementsJ

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he made to the Victim during the police

- recorded, January 28, 2021,
telephone call between himself and the Victim must be suppressed , as t hose

statements constitute t he “fruit ” of this interference with his right to counsel

and his right against self

- incrimination

. Id.
Following a hearing, t he trial court denied Appellant’s suppression

motion

. See N.T. Suppression Hearing, 2/4/22, at 1

- 12; Trial Court Order,
6/14/22 , at 1

- 4. Appellant then proceeded to a jury trial where, as Appellant
notes, “the Commonwealth relied extensively on [statements Appellant made
during the] wiretapped[, January 28, 2021, telephone call between Appellant

and the Victim ].” See Appellant’s Brief at 8.
The jury found Appellant guilty of two counts of aggravated indecent

assault and two counts of indecent assault. 1 On May 23, 2023, the trial court
sentenced Appellant to serve an aggregate term of two to four years in prison,
followed by two years of probation, for his convictions.
Appellant filed a timely notice of appeal. He raises one claim to this

Court:

Did the trial court err[] when it allowed the Commonwealth

to rely on statements made by [Appellant] in a recorded telephone call to the [Victim], after [Appellant] was advised by one of the investigating officers that he should not “worry about” hiring co unsel “right this minute”? Appellant’s Brief at 4.

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. §§ 3125(a)(1) and (4) and 3126(a)(1) and (4), respectively.J

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Appellant's sole claim challenges the trial court's denial of his
suppression motion. Our standard and scope of review of an order denying a
motion to suppress is well established :

[We are] 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. 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. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly a pplied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. Mbewe , 203 A.3d 983, 986 (Pa. Super. 2019) (quotation
marks omitted).
Appellant claims on appeal that , during his December 10, 2019 meeting
with Detective Ziegler, Detective Ziegler told Appellant that he did not need
to hire an attorney “ at that time ” and that Detective Ziegler then “promised”
Appellant that the detective “would inform [ Appellant] when he needed to . .

. seek the assistance of counsel.” Appellant’s Brief at 14. According to
Appellan t: “Detective Zeigler didn’t ever get ‘in touch,’ to tell [Appellant] it
was time to hire counsel. Instead, the dete ctive exploited [Appellant’s]
decision to do exactly what the detective told him to do

– not hire counselJ

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until ‘charges are filed.’” Id. at 15. Appellant further claims that , since
Detective Zeigler “did not deliver what he promise[d] in the inducement,”
Appellant’s waiver of his right to counsel and his right against

self

- incrimination w ere “based on a false promise.” Id. Accordingly, Appellant
claims, the statements Appellant made to the Victim during the
police

- recorded, January 28, 2021, telephone call between himself and the
Victim must be suppressed, as those statements constitute the “fruit” of this
interference with his right to counsel. 2 Id. at 18. In support of this claim,
Appellant relies upon the Pennsylvania Supreme Court’s opin ion in

Commonwealth v. Gibbs , 553 A.2d 409 (Pa. 1989) and our opinion in
Commonwealth v. Morgan , 606 A.2d 467 (Pa. Super. 1992) , both of which

held that the “waiver of a right based upon a false promise [by the police]
cannot be fairly accepted as a knowing and voluntary waiver” of that right.

See Morgan , 606 A.2d at 469.

In Gibbs , Defendant Gibbs was arrested for murder and given his

Miranda 3 warnings

. Gibbs , 553 A.2d at 410. After receiving his Miranda
warnings, Defendant Gibbs stated: “Maybe I should talk to a lawyer. What
good would it do me to tell you?”. Id. The officer then responded: “I really
don’t know what good it would do. The only thing is I would tell the District

_________________ __________ ______ ____ _______

2 Appellant’s claim on appeal appears to vary slightly from the claim he made to the suppression court. Rather than finding waiver, we conclude that Appellant’s claim on appeal fails on the merits.

3 Miranda v. Arizona , 384 U.S. 436 (19 66).J

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Attorney you cooperated for whatever good that would be, but I would have
no idea whether it would help your case or not.” Id. Defendant Gibbs then

waived his Miranda rights and spoke with the officer. Id.
On appeal to our Supreme Court, Defendant Gibbs claimed that the

officer’s above

- quoted statement “constituted an impermissible misleading

inducement to [Defendant Gibbs] not to pursue further his ambiguous and
equi vocal inquiry regarding the presence of an attorney.” Id. The Supreme
Court agreed with Defendant Gibbs and held “that the statement by [the
officer] to [Defendant Gibbs] was an impermissible inducement and thereby

tainted his admissions.” Id. The Supreme Court reasoned:

By conveying the distinct impression that the district attorney would be told of his cooperation in giving a confession on the spot, there occurred an inescapable inducement which cannot be condoned under our law. For while we recognize that the police have a legitimate responsibility to conduct investigations, including interrogations, criminal suspects have a constitutional right to make up their own minds as to whether they want the Miranda protections. Promises of benefits or special considerations, h owever benign in intent, comprise the sort of persuasion and trickery which easily can mislead suspects into giving confessions. The process of rendering Miranda warnings should proceed freely without any intruding frustration by the police. Only in that fashion can we trust the validity of subsequent admissions, for if the initial employment of Miranda is exploited illegally, succeeding inculpatory declarations are compromised. Misleading statements and promises by the police choke off the legal process at the very moment which Miranda was designed to protect.

. . . [T]he authorities are not permitted to employ inducements which impair in any way a suspect’s right to his own unfettered evaluation of the need for legal counsel. Miranda and its progeny . . . otherwise would make no sense.J

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Id. at 410

- 411

. Morgan dealt with the waiver of the right against self

- incrimination . In
that case, the police telephoned Defendant Morgan and “asked him to come
to the police station for questioning in regard to a stolen car that was found
bearing [his] fingerprints.” Morgan , 606 A.2d at 468. A detective provided
Defendant Morgan with his Miranda warnings, Defendant Morgan waived
those rights, and admitted that he stole the car. Id.

The detective then began questioning Defendant Morgan about “four
armed robberies of pizza delivery men which had occurred in [the city,] as
well as a recent homicide.” Id. Moreover, “[p]rior to taking any statements
from [Defendant Morgan] regarding the pizza robberies, ” the detective told
Defendant Morgan that “ he would inform the district attorney of [Defendant
Morgan’s] cooperation and . . . he would try to help him join the Navy.” Id.
In response, Defendant Morgan admitted his participation in the robberies.

Id.
Prior to trial, Defendant Morgan filed a suppression motion and claimed

that , under Gibbs , his admission concerning the pizza robberies must be
suppressed, as the detective provided him with an “impermissible

inducement” in exchange for waiving his right to remain silent. The trial court
suppressed Defendant Morgan’s statements and, on appeal, this Court

affirmed. We held:

In Gibbs , the Supreme Court concluded its decision by holding “authorities are not permitted to employ inducements which impair in any way a suspect's right to his ownJ

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- unfettered evaluation of the need for legal counsel. Miranda and its progeny

. . . otherwise would make no sense.” Gibbs , 553 A.2d at 411. This pronouncement, applied in Gibbs to the right to counsel, was also intended by the Gibbs Court to extend to all of the rights elucidated in Miranda and subsequent derivative case law, including the right to remain silent.

. . . It is the inducement which leads to overcoming resistance to police procedures with which Gibbs is concerned and not the specific right waived; nor is it dispositive whether the inducement occurred before or after a Miranda warning. Gibbs speaks to the fact that police cannot deliver what they promise in the inducement and, therefore, waiver of a right based upon a false promise cannot be fairly accepted as a knowing and voluntary waiver. Morgan , 606 A.2d at 469 (emphasis omitted).
On appeal, Appellant claims that his case is similar to Gibbs and
Morgan because , during Appellant’s December 10, 2019 interview with
Detective Ziegler , Detective Zeigler falsely “promised” Appellant that the

detective “would inform [Appellant] when he needed to . . . seek the

assistance of counsel ” in exchange for Appellant “giving up his right to silence”
and his right to counsel. Appellant’s Brief at 14. Appellant further claims

that the incriminating statements he made to the Victim during the
police

- recorded, January 28, 2021, telephone call between himself and the
Victim must be suppressed, as those statements constitute the “fruit” of this
interference with his right to counsel and his right against self

- incrimination.
Appellant’s claim fails.
It is true that, d uring their December 10, 2019 meeting, Detective
Zeigler told Appellant multiple times that he “would be in touch” with AppellantJ

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at a later date; however, Detective Zeigler’s words cannot rationally be
construed to mean that the detective “would inform [Appellant] when
[Appellant] needed to . . . seek the assistance of counsel.” See Appellant’s

Brief at 14. Certainly , during the suppr ession hearing, the trial court watched

video of the non - custodial, December 10, 2019 meeting between Appellant

and Detective Ziegler . After watching this video , the trial court came to the

factual conclusion that Appellant “was not induced into provi ding incriminating
information to the police

. ” See Trial Court Opinion, 6/14/22, at 5. This factual
finding is supported by the record and is thus binding on this Court. See

Mbewe , 203 A.3d at 986 ; see also supra at ** 2

- 5. Therefore, as there was
no ”inducement” in this case, Appellant’s claim on appeal necessarily and
immediately fails.
Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/15/2024