J-S13005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHARON FLANAGAN,

Appellant No. 61 WDA 2014

Appeal from the Judgment of Sentence Entered December 9, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0010054-2012

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 06, 2015

Appellant, Sharon Flanagan, appeals from the life sentence imposed 

following her conviction for first-degree murder. She contends that her 

statements to police should have been suppressed because they were made 

while she was in police custody, without Miranda1 warnings, and after she 

repeatedly asked for an attorney. Appellant also argues that evidence 

discovered on her computer should have been suppressed because the 

computer was searched without probable cause. Finally, Appellant asserts 

that the evidence was insufficient to support her conviction. After careful 

review, we affirm.

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966) (holding that government may 

not use inculpatory or exculpatory statements made by a defendant during a 

custodial interrogation unless it demonstrates that the defendant was 

apprised of her right against self-incrimination and her right to counsel).
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The trial court summarized the facts adduced at trial as follows:

The charges arose out of the drowning death of [Appellant]'s 

two year old son, Steven. [Appellant] checked into Best Western 

Parkway Inn in Greentree on July 1, 2012[,] with her son, 

intending to take him to the Sandcastle Waterpark. 

Approximately two hours later she was seen first in the hallway 

of her sixth floor room and then in the lobby screaming about 

"her baby" and clutching her stomach. After a few minutes hotel 

security realized that she was referring to her child up in her 

room and they proceeded to the sixth floor. When it was 

determined that [Appellant] did not have her key, one was 

obtained from the desk and they gained entry to the room, 

accompanied by two other hotel guests who had responded to 

[Appellant]'s cries. One of those guests, Dominick Netti, noticed 

Steven lying face down in the bathtub, unconscious. He pulled 

him out and tried to revive him. Steven was dressed in a swim 

suit and crocs. He was taken by ambulance to Children's 

Hospital where he died several days later.

[Appellant] told one of the first officers on the scene, 

Greentree Police Lieutenant Robert Psomas[,] that she had 

allowed Steven to swim in the tub, filling it to about 10 to 12 

inches. She said she was in the room with him the entire time. 

She saw that he seemed to be having a problem and was 

beginning to panic. She said that she panicked too and tried to 

lift him from the water but claimed that she could not; that it felt 

as if something were holding him down. She left the bathroom 

to put on a back brace but, when she returned, still could not lift 

him. She said that she then pulled the plug and ran from the 

room to get help, eventually making it to the lobby.

[Appellant] told essentially the same story to Allegheny 

County Homicide Detective Michael Feeney, who spoke with her 

at Children's Hospital, where Steven had been taken and was 

then clinging to life. She added that at one point he had been 

climbing on a towel rack and fell on his back and that he 

appeared to have his foot caught on something when she was 

trying to get him out of the tub. She also told Detective Feeney 

that when she returned after putting on what she described as a 

back brace, Steven was "lifeless." She said that at this time, she 

thought that she should drain the tub. She did so and the water 

began to drain from the tub but the drain became clogged with a 

wash cloth or a plastic item she said he was playing with. When 
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the water stopped draining, she told Detective Feeney that she 

still could not get Steven out of the tub and began to panic. 

Grabbing her keys and cell phone[, Appellant] ran from the 

room, stopping to ask a woman in the hallway to call 911 and 

then proceeding down to the front desk. She later said that she 

tried to call 911 from the room and, when he checked her cell 

phone, Detective Feeney noticed that the numbers "9911" were 

dialed at about 8:32 p.m., around the time of the incident. She 

agreed to execute a consent to search the hotel room, her car 

and her cell phone. During this interview, [Appellant] was asked 

if she wanted to see her son and she declined.

Detective Feeney also secured security video from the hotel. 

The video shows [Appellant] arriving, carrying Steven in her 

arms as she walked across the hotel lobby. She appeared to 

have little difficulty carrying him or lifting him in the video. A 

latter portion of the video shows her emerging from the elevator 

at 8:33 p.m. and approach[ing] the front desk.

[Appellant] spoke with detectives again the following day. 

Allegheny County Detective Stephen Hitchings approached her at 

the hotel and asked if she would agree to an interview at police 

headquarters. She said she would. When she entered the police 

vehicle, she asked if she "needed an attorney." Detective 

Hitchings told her "no." During the drive to the police station, 

[Appellant] asked if she "could call a lawyer" and then said she 

wanted to "call a lawyer." The detective did not tell her that she 

could not contact an attorney. She was not under arrest at that 

time and was, according to the detective, free to refuse to 

answer any questions and to leave, if she wanted.

During this interview[,] [Appellant stated] that earlier that 

year, between Christmas and March, she believed that her 

husband may have sexually abused their son. She fled with her 

son to Akron, Ohio[,] where Steven was examined at Akron 

Children's Hospital and no signs of abuse were detected. 

Although she returned home with her son, she and her husband 

separated and, according to her, the Court gave her husband 

70% custody. She had custody the weekend of July 1 and 

decided to take Steven to Pittsburgh to visit a water park. After 

checking in, she and Steven watched cartoons until Steven 

began to get restless. She dressed him in a bathing suit, put 

water in the tub and sat on the toilet while he played. Detective 

Hitchings recounted what she told him:
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She said during the course of him playing, he's climbing in 

and out, climbing up on the bar in the tub, and at one 

point he fell, but she said he was fine and he continued 

playing, and then during that time she decided to put 

some of the shampoo that was provided by the hotel into 

the bath to make it a bubble bath. She said after doing 

that, she said she discovered him face down in the tub. 

...

She stated she attempted to pull Steven from the tub but 

she was unable to do so, so she went out of the bathroom, 

got her back brace, came back in and again attempted to 

pull him from the tub but it felt as if something was pulling 

him towards the bottom. She stated she then attempted 

to let the water out of the tub but it seemed like it wasn't 

going out, so she went and grabbed her keys and her 

phone, and when she walked out of the room to get help, 

the door[] shut behind her, and her room key, little credit 

card key was still inside the room. She went to the front 

desk and alerted [hotel staff] to get help for him. 

At this time, Detective Hitchings determined that it was 

proper to provide [Appellant] with her pre-interrogation rights. 

He read those rights to her from the Allegheny County Police 

Rights Waiver form, [and] had her sign it. It was also signed by 

the detective and by his partner, Timothy Langani. After 

[Appellant] executed the form, [D]etective Hitchings asked her 

several questions. She denied ever threatening to harm her son 

or that she attempted to drown him in the hotel tub. When 

asked why she could not pull him from the tub, she responded, 

"I don't know ... it felt like something was pulling him towards 

the bottom of the tub."

Trial Court Opinion (TCO), 8/21/2014, at 2-6 (citations and footnote 

omitted).

The Commonwealth filed a criminal information on August 23, 2013, 

charging Appellant with criminal homicide, 18 Pa.C.S. 2501(a); aggravated 

assault, 18 Pa.C.S. § 2701(a)(1); and endangering the welfare of children, 

18 Pa.C.S. § 4304(a). Just prior to trial, the Commonwealth withdrew the 
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charge of aggravated assault. Following a trial conducted on September 16-

20, 2013, a jury convicted Appellant of first-degree murder and endangering 

the welfare of children. On December 9, 2013, the trial court sentenced 

Appellant to a mandatory term of life imprisonment for first-degree murder, 

and a consecutive term of 21⁄2-5 years’ incarceration for endangering the 

welfare of children. Appellant filed a timely notice of appeal from the 

judgment of sentence. Appellant also filed a timely Pa.R.A.P. 1925(b) 

statement, and the trial court issued its Rule 1925(a) opinion on August 21, 

2014.

Appellant now presents the following questions for our review: 

I. Should [Appellant]'s statements to police have been 

suppressed because they were made while in police custody, 

without the benefit of Miranda warnings, after she asked for an 

attorney?

II. Did the trial court err in failing to suppress the contents of 

... [A]ppellant's computer as the search warrant to obtain the 

computer was obtained without probable cause?

III. Was the evidence insufficient to support a finding of 

First[-]Degree Murder?

Appellant’s Brief, at 7. 

Appellant’s first claim concerns the denial of her suppression motion 

concerning the statements she made during an interrogation that occurred in 

the police station on July 2, 2012, the day after the drowning. Appellant 

argues that her right to counsel was violated when she was questioned 

during a custodial interrogation, despite having invoked her right to counsel. 

The trial court agreed that Appellant attempted to invoke her right to 
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counsel; however, it found that Appellant was not subject to a custodial 

interrogation at the time when those attempts were made. Consequently, 

the trial court denied Appellant’s motion to suppress her subsequent 

statements.

Our standard of review in addressing a challenge to a trial 

court's denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When reviewing 

rulings of a suppression court, we must consider only the 

evidence of the prosecution 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 record supports the findings of 

the suppression court, we are bound by those facts and may 

reverse only if the legal conclusions drawn therefrom are in 

error.

In re D.M., 727 A.2d 556, 557 (Pa. 1999) (internal citations omitted). 

It is well-settled that:

The prosecution may not use statements stemming from a 

custodial interrogation of a defendant unless it demonstrates 

that he was apprised of his right against self-incrimination and 

his right to counsel. Thus, Miranda warnings are necessary any 

time a defendant is subject to a custodial interrogation. As the 

United States Supreme Court explained, “the Miranda

safeguards come into play whenever a person in custody is 

subjected to either express questioning or its functional 

equivalent.” Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 

1682, 64 L.Ed.2d 297 (1980). Moreover, in evaluating whether 

Miranda warnings were necessary, a court must consider the 

totality of the circumstances.

Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (some internal 

citations omitted).
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“Interrogation” is defined as “questioning initiated by law enforcement 

officials.” Miranda, 384 U.S. at 444. In Innis, the Supreme Court of the 

United States elaborated on this subject as follows:

We conclude that the Miranda safeguards come into play 

whenever a person in custody is subjected to either express 

questioning or its functional equivalent. That is to say, the term 

“interrogation” under Miranda refers not only to express 

questioning, but also to any words or actions on the part of the 

police (other than those normally attendant to arrest and 

custody) that the police should know are reasonably likely to 

elicit an incriminating response from the suspect. The latter 

portion of this definition focuses primarily upon the perceptions 

of the suspect, rather than the intent of the police. This focus 

reflects the fact that the Miranda safeguards were designed to 

vest a suspect in custody with an added measure of protection 

against coercive police practices, without regard to objective 

proof of the underlying intent of the police. A practice that the 

police should know is reasonably likely to evoke an incriminating 

response from a suspect thus amounts to interrogation. But, 

since the police surely cannot be held accountable for the 

unforeseeable results of their words or actions, the definition of 

interrogation can extend only to words or actions on the part of 

police officers that they should have known were reasonably 

likely to elicit an incriminating response.

Innis, 446 U.S. at 300-02 (internal footnotes omitted). 

The appropriate test for determining whether a situation involves 

custodial interrogation is as follows:

The test for determining whether a suspect is being 

subjected to custodial interrogation so as to necessitate 

Miranda warnings is whether he is physically deprived of 

his freedom in any significant way or is placed in a 

situation in which he reasonably believes that his freedom 

of action or movement is restricted by such interrogation.

Commonwealth v. Busch, 713 A.2d 97, 100 (Pa. Super. 

1998)[,] quoting Commonwealth v. Rosario, 438 Pa.Super. 

241, 652 A.2d 354, 365–66 (1994) (en banc), appeal denied, 
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546 Pa. 668, 685 A.2d 547 (1996) (other citations omitted). 

Said another way, police detentions become custodial when, 

under the totality of the circumstances, the conditions and/or 

duration of the detention become so coercive as to constitute the 

functional equivalent of arrest. 

The factors a court utilizes to determine, under the totality 

of the circumstances, whether a detention has become so 

coercive as to constitute the functional equivalent of arrest 

include: the basis for the detention; its length; its location; 

whether the suspect was transported against his or her will, how 

far, and why; whether restraints were used; whether the law 

enforcement officer showed, threatened or used force; and the 

investigative methods employed to confirm or dispel suspicions. 

Busch, 713 A.2d at 101. The fact that a police investigation has 

focused on a particular individual does not automatically trigger 

“custody,” thus requiring Miranda warnings.

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (some 

internal citations omitted). 

Purportedly applying the above standard, the trial court determined 

that Appellant was not subject to a custodial detention at the time she 

requested an attorney. Accordingly, the court concluded that Appellant’s 

statements to police were not suppressible under Miranda. Specifically, the 

court found as follows:

Here, Detective Hitchings testified that [Appellant] was under no 

obligation to go with them; that had she refused to accompany 

him, she would not have been compelled to do so. If she had 

asked, during the drive to police headquarters or after they 

arrived to leave, they would have made arrangements to take 

her back to her hotel. At all times prior to the decision to have 

her execute the rights form, she was free to leave. [Appellant] 

testified at the hearing. She stated that she felt that she needed 

to go with the officers when they asked her to do so. She did 

not, however, relate anything the officers said that would cause 

her to believe that. Moreover, although she stated that at some 

point during her interview with Detective Hitchings she asked if 

she could go to lunch and was told no, she did not state when 
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this occurred. Her testimony was descriptive of the entire time 

she was in the police station, which she said was between six 

and seven hours. However, at 1:45 p.m., about an hour and 45 

minutes after she arrived, she was advised that she was being 

taken into custody. At this time, before any further questioning 

took place, her rights were explained to her and she executed 

the rights form.

This Court found the testimony of Detective Hitchings to be 

credible and that testimony established that [Appellant] was not 

in custody and could not, based on the objective facts, 

reasonably believed herself to be in custody. Her testimony was 

self-serving and not credible. She claimed that the rights 

warning form was presented to her and executed by her "...at 

the beginning of her time in the interrogation room." The form, 

however, has the time it was executed written on it: "1345 

hours" or 1:45 [p.m.] in non-military time. During her direct 

examination she was asked by her attorney if she asked for an 

attorney at any time while she was at the police station. She 

responded, "I don't remember." A few minutes later, during 

cross examination, she claimed that she asked for an attorney 

when she read the form. On the form the word "yes" is provided 

next to question 6 which asks, "...having these rights in mind, do 

you wish to speak to me now." She admitted reading and 

signing the form, but denied at the hearing that she provided the 

answers.

These inconsistencies, both within her own testimony and 

with the testimony of the police officers, rendered [Appellant]'s 

testimony not worthy of belief. The Commonwealth met its 

burden of establishing that [Appellant]'s statement was properly 

obtained and, accordingly, the Motion to Suppress those 

statements was properly denied.

TCO at 8-9.

Appellant contends that she was effectively in custody when she 

requested an attorney. She points out that when she made the request(s), 

she was seated in the back of a police car, being transported by police in a 

city and state unfamiliar to her. Furthermore, although Detective Hitchings 

testified that Appellant was free to leave at any time during the ride from 
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the hotel to the police station, Appellant contends that he did not 

communicate that to her. Moreover, Appellant testified that Detective 

Hitchings made her feel like she did not have a choice whether to 

accompany him to the police station. 

In addressing Appellant’s argument(s), we must first note that we are 

constrained by the trial court’s credibility determinations regarding 

Appellant’s testimony at the suppression hearing. Accordingly, we cannot 

consider Appellant’s actual, subjective belief on appeal regarding whether 

she felt obligated to accompany Detective Hitchings when it is clear that the 

trial court found her testimony to that effect not credible, and where it 

contradicted Detective Hitchings’ testimony that he merely requested, rather 

than ordered, her to go with him. Thus, we must reject any notion that 

Appellant was transported against her will, at least with respect to the way 

the transportation was initiated. 

Nevertheless, we agree with Appellant that the objective factors which 

she highlights tend to suggest that she was in custody while in the police 

car. Police cars do not typically permit exit from the rear, and there is 

nothing of record to dispute that norm. Moreover, the travel time involved 

was not insignificant (30 minutes), and because Appellant is not a native of 

the Pittsburgh area, she would likely have felt uncomfortable getting out of 

the vehicle in such an unfamiliar setting. Thus, there is at least some 

evidence that Appellant would not have felt free to abandon the ride despite 

having initially consented to it. Moreover, Appellant broached the topic of 
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whether she needed an attorney on multiple occasions, displaying some 

objective evidence that she believed she was suspected of a crime, and that 

she was being brought to the police station to answer questions as a 

suspect, and not merely as a witness to an accident. 

However, the trial court was obliged to weigh these factors against 

other factors that suggested that Appellant was not subject to a custodial 

detention. For instance, at least initially, Appellant willingly accompanied 

the police officers to the police station. Appellant was not handcuffed during 

the ride, or at any time thereafter until she was arrested. And, although 

Appellant’s purse was searched for weapons when she arrived, it was not 

immediately taken from her, and she was permitted to retain her mobile 

phone until after she executed a Miranda waiver. 

Appellant contends that her case compares favorably to 

Commonwealth v. McCarthy, 820 A.2d 757 (Pa. Super. 2003). In that 

case, the Commonwealth appealed from the trial court’s granting of Patricia 

McCarthy’s suppression motion premised upon Miranda. A police detective, 

Wagner, interrogated McCarthy at the school where she worked regarding 

the theft of a credit card, currency, and prescription medication. The 

Commonwealth argued that the trial court’s decision to suppress McCarthy’s 

statements during that interview was erroneous because she was not in 

custody when questioned. In affirming the trial court’s granting of 

McCarthy’s suppression motion, we relied on the following:
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Wagner admitted that his purpose in the return interview was to 

get [McCarthy] to confess, and that the interview took place in 

an office with the door closed. Wagner told [McCarthy] she was 

a suspect, and that he was confident that the handwriting 

analysis would establish that she was the one who had illegally 

used the credit card. [McCarthy] testified that Wagner urged her 

to confess, promising her that if she did, all she would get would 

be probation and placement in a rehabilitation program. If she 

did not, she would receive jail time. If she did not confess, he 

would arrest her and take her out, in handcuffs, in front of all 

her friends. [McCarthy] asked for permission to call her 

husband, and to talk [to] an attorney, and Wagner refused. As 

she told the court: “I stood up, went to the door, and told him, 

‘Look, I just want to talk to my attorney,’ and he told me, no, 

this is my window of opportunity; if I walked through that door 

he would make sure that all the charges stuck and he would 

embarrass me in front of my friends. That's when I sat down.”

McCarthy, 820 A.2d at 759 (citations omitted). 

We note that the procedural posture in McCarthy was such that this 

Court did not face the same credibility issues that were present in this case. 

Furthermore, McCarthy is simply not factually analogous to this case in 

many respects. At the time McCarthy expressed her desire to speak with an 

attorney, Wagner was threatening her with arrest and threatening to 

foreclose upon her rehabilitative opportunities should she be convicted for 

the theft of the stolen items. Here, despite that Appellant’s request for an 

attorney occurred in a setting more often associated with custodial 

detentions (the back of a police car versus a school office), the officers did 

not react to Appellant’s request with threats of negative consequences for 

talking to an attorney. There is also no evidence here that Appellant was in 

any way thwarted in an attempt to terminate her encounter with police 

because there is no evidence she made any such attempt. Consequently, 
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we conclude that McCarthy does not provide Appellant with any basis for 

relief in this matter. 

Appellant also cites Commonwealth v. Zogby, 689 A.2d 280 (Pa. 

Super. 1997), for support. Like our decision in McCarthy, the Zogby Court 

considered a Commonwealth’s appeal from the trial court’s granting of a 

suppression motion on Miranda grounds. Furthermore, in Zogby, 

Trooper Haubrick entered appellee's bedroom, aroused him from 

a sound sleep and “advised” or requested him to get dressed and 

come down stairs to answer some questions. Trooper Haubrick's 

actions in entering appellee's bedroom, one of the areas of 

greatest privacy, rousing him from a sound sleep and instructing 

him to dress and go outside are highly intrusive and suggest a 

will on the part of the police officer that would not be denied. 

Appellee was not informed that he could decline the request and, 

given the degree of intrusion already experienced, it is highly 

unlikely that appellee believed, or that anyone similarly situated 

would believe, that he could simply turn over and go back to 

sleep.

Zogby, 689 A.2d at 282-83.

By contrast, in this case, Appellant was not aroused from her slumber 

in the privacy of her own bedroom, nor is any similar circumstance present. 

The trial court found credible Detective Hitchings’ account that he asked, 

rather than ordered, Appellant to accompany him to the police station for 

questioning. Moreover, the request occurred in the lobby of a hotel and in 

the company of Appellant’s husband.2 Zogby’s facts are simply not nearly 

____________________________________________

2 Although Appellant’s husband was not with her at the time of Steven’s 

drowning, it is undisputed that he was with her when she was approached by 

Detective Hitchings in the lobby of the hotel the next day. 
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analogous enough to the instant case to render erroneous the trial court’s 

conclusion that Appellant was not in custody when she inquired about her 

right to counsel. 

Although we recognize that this was a close case on the question at 

hand, we are unconvinced by Appellant’s arguments that the trial court erred 

in determining that she was not in custody prior to when she executed the 

Miranda waiver. The facts relied upon by the trial court in reaching that 

conclusion are adequately supported by the record. The court’s legal 

conclusion, which was heavily dependent on those factual determinations, is 

not clearly erroneous. Accordingly, we conclude that the trial court did not 

err in denying Appellant’s suppression motion based on Appellant’s claim 

that her Miranda rights were violated. 

Next, Appellant claims that the trial court erred when it denied her 

motion to suppress the contents of a computer seized during the execution 

of a warrant. Specifically, Appellant complains:

Here, [Appellant] was charged with drowning her son in a hotel 

room bathtub. Nothing in the affidavit [(attached to the 

warrant)] links that homicide to the items subject to the search. 

The crime occurred in Allegheny County, not in the vicinity of 

[Appellant]'s West Virginia home. Any link between this 

computer and the crime is too tenuous to be anything more than 

a "fishing expedition" by the police. 

Appellant’s Brief, at 35.

Our standard of review of this matter is as follows: 

Article I, Section 8 [of the Pennsylvania Constitution] and the 

Fourth Amendment [to the United States Constitution] each 

require that search warrants be supported by probable cause. 
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“The linch-pin that has been developed to determine whether it 

is appropriate to issue a search warrant is the test of probable 

cause.” Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 

887, 899 (1991) (quoting Commonwealth v. Miller, 513 Pa. 

118, 518 A.2d 1187, 1191 (1986)). “Probable cause exists 

where the facts and circumstances within the affiant's knowledge 

and of which he has reasonably trustworthy information are 

sufficient in themselves to warrant a man of reasonable caution 

in the belief that a search should be conducted.” 

Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352, 357 

(1972).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 

L.Ed.2d 527 (1983), the United States Supreme Court 

established the “totality of the circumstances” test for 

determining whether a request for a search warrant under the 

Fourth Amendment is supported by probable cause. In 

Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986), 

this Court adopted the totality of the circumstances test for 

purposes of making and reviewing probable cause 

determinations under Article I, Section 8. In describing this test, 

we stated:

Pursuant to the “totality of the circumstances” test set 

forth by the United States Supreme Court in Gates, the 

task of an issuing authority is simply to make a practical, 

common-sense decision whether, given all of the 

circumstances set forth in the affidavit before him, 

including the veracity and basis of knowledge of persons 

supplying hearsay information, there is a fair probability 

that contraband or evidence of a crime will be found in a 

particular place.... It is the duty of a court reviewing an 

issuing authority's probable cause determination to ensure 

that the magistrate had a substantial basis for concluding 

that probable cause existed. In so doing, the reviewing 

court must accord deference to the issuing authority's 

probable cause determination, and must view the 

information offered to establish probable cause in a 

common-sense, non-technical manner.

* * *

[Further,] a reviewing court [is] not to conduct a de novo

review of the issuing authority's probable cause 

determination, but [is] simply to determine whether or not 
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there is substantial evidence in the record supporting the 

decision to issue the warrant.

Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537–38, 

540 (2001).

As our United States Supreme Court stated: “A grudging or 

negative attitude by reviewing courts towards warrants ... is 

inconsistent with the Fourth Amendment's strong preference for 

searches conducted pursuant to a warrant; courts should not 

invalidate warrants by interpreting affidavits in a hypertechnical, 

rather than a commonsense, manner.” Gates, supra at 236, 

103 S.Ct. 2317 (citation and quotation marks omitted); see also 

United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 

L.Ed.2d 677 (1984) (“Reasonable minds frequently may differ on 

the question whether a particular affidavit establishes probable 

cause, and we have thus concluded that the preference for 

warrants is most appropriately effectuated by according ‘great 

deference’ to a magistrate's determination.”).

Commonwealth v. Jones, 988 A.2d 649, 655-56 (Pa. 2010) (footnote 

omitted). 

In justifying its denial of Appellant’s motion to suppress the seized 

contents of Appellant’s computer, the trial court found, and Appellant does 

not dispute, that the affidavit of probable cause established probable cause 

that Appellant killed her son. Furthermore, the court determined that the 

following provisions of the affidavit established probable cause that Appellant 

had used her laptop computer in connection with what plans she may have 

had to harm or kill her son:

h. At approximately 12:30 p.m. on July 27, 2012, Detectives 

Miller and Towne interviewed [Appellant]'s husband and 

the victim's father, Steven Flanagan, who stated that in 

the months prior to the victim's death, [Appellant] 

displayed strange behaviors, including accusing Mr. 

Flanagan of child molestation, transferring large sums of 

money from the couple's joint account to an account in 
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only her name, dying the two-year-old victim's hair black, 

and inquiring of Mr. Flanagan whether he had ever 

contemplated suicide and stating that she would consider 

taking her son, the victim, with her if she ever committed 

suicide; 

i. Steven Flanagan also told detectives that after the victim's 

death, he returned to their residence in West Virginia 

where [Appellant] had been living alone with the victim to 

find packed boxes and totes that appeared as if [Appellant] 

was preparing to move and typed notes regarding dying 

the victim's hair black, information on child abduction, 

information on school districts in Ohio, job opportunities, 

and banking information; 

j. According to Mr. Flanagan, the residence lacked any type 

of work processing equipment except for an E Machine 

laptop computer owned by the couple but within 

[Appellant]'s possession during the couple's separation;

k. On August 2, 2012, Detective Miller and West Virginia 

State Police Trooper Edwards executed a search warrant 

on the residence of Steven Flanagan and [Appellant,] 

Sharon Flanagan[,] at 260 Topaz Lane in Inwood, West 

Virginia;

l. Mr. Flanagan relinquished custody of the aforementioned E 

Machines laptop computer to detectives.

TCO, at 9-10. 

We agree with the trial court that, based on Mr. Flanagan’s 

observations of Appellant’s behavior, her typed notes, and Appellant’s 

possession of the computer just prior to her son’s untimely demise, it was 

reasonable for the issuing magistrate to believe there was a “fair probability 

that contraband or evidence of a crime” would be found on Appellant’s 

computer. Torres, supra. Contrary to Appellant’s assertion, this was not a 

mere ‘fishing expedition.’ The typed notes discovered by Mr. Flanagan (and 

their content), Mr. Flanagan’s statements concerning Appellant’s behavior 
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prior to the victim’s death, and that the couple did not own any other word 

processing equipment, were sufficiently specific to target Appellant’s 

computer, and common sense would dictate that relevant evidence would be 

found therein. Thus, Appellant’s second claim lacks merit.

Finally, Appellant challenges the sufficiency of the evidence supporting 

her first-degree murder conviction. Our standard of review of sufficiency 

claims is well-settled:

A claim challenging the sufficiency of the evidence is a 

question of law. Evidence will be deemed sufficient to support 

the verdict when it establishes each material element of the 

crime charged and the commission thereof by the accused, 

beyond a reasonable doubt. Where the evidence offered to 

support the verdict is in contradiction to the physical facts, in 

contravention to human experience and the laws of nature, then 

the evidence is insufficient as a matter of law. When reviewing a 

sufficiency claim[,] the court is required to view the evidence in 

the light most favorable to the verdict winner giving the 

prosecution the benefit of all reasonable inferences to be drawn 

from the evidence. 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted).

Statutorily, “[a] criminal homicide constitutes murder of the first 

degree when it is committed by an intentional killing.” 18 Pa.C.S. § 

2502(a). Our Supreme Court has elaborated on this definition as follows:

There are three elements of first-degree murder: (i) a human 

being was unlawfully killed; (2) the defendant was responsible 

for the killing; and (3) the defendant acted with malice and a 

specific intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v. 

Houser, 610 Pa. 264, 18 A.3d 1128, 1133 (2011). As set forth 

in the third element, first-degree murder is an intentional killing, 

i.e., a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 
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2502(a) and (d). “Premeditation and deliberation exist 

whenever the assailant possesses the conscious purpose to bring 

about death.” Commonwealth v. Drumheller, 570 Pa. 117, 

808 A.2d 893, 910 (2002). The law does not require a lengthy 

period of premeditation; indeed, the design to kill can be 

formulated in a fraction of a second. Commonwealth v. 

Rivera, 603 Pa. 340, 983 A.2d 1211, 1220 (2009); 

Drumheller, supra; Commonwealth v. Earnest, 342 Pa. 544, 

21 A.2d 38, 40 (1941) (“Whether the intention to kill and the 

killing, that is, the premeditation and the fatal act, were within a 

brief space of time or a long space of time is immaterial if the 

killing was in fact intentional, willful, deliberate and 

premeditated.”). Specific intent to kill as well as malice can be 

inferred from the use of a deadly weapon upon a vital part of the 

victim's body. Houser, supra at 1133–34; Briggs, supra at 

306–07; Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 

119, 130–31 (2008). Whether the accused had formed the 

specific intent to kill is a question of fact to be determined by the 

jury. Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911, 

916 (1963).

Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013).

Here, Appellant argues that the Commonwealth’s theory of the case, 

that Appellant “put her baby in the bathtub and held his head under the 

water until he died[,]” is unsustainable on sufficiency grounds because 

Steven had no bruises or abrasions that would indicate that a struggle 

occurred. Appellant’s Brief at 38. We disagree.

The testimony of Dr. Karl Williams, Chief Medical Examiner for 

Allegheny County, belies Appellant’s claim. He stated that at least two 

bruises were found on Steven’s body. He identified a bruise on Steven’s 

arm. N.T., 9/16-20/2014, at 273-74. He identified a bruise on Steven’s leg. 

Id. at 274-75. Furthermore, Dr. Williams testified that Steven died as a 
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result of drowning.3 Id. at 276. He also determined that the manner of 

death was homicide. Id. at 280. 

With respect to Appellant’s specific claim, when asked if there would 

be “a lot of external trauma” if “an adult is going to force” a 32-pound child 

under water in a bathtub, Dr. Williams responded:

Not necessarily, especially in a younger child. We know in a 

somewhat younger category where we think of ... sudden infant 

death syndrome, we know you can smother babies without 

leaving any marks whatsoever. Again, it is not – I think in your 

mind you think about adults fighting, struggling, and that might 

be the case, but, as I say, just forcibly forcing water up into the 

upper airways is enough to cause the heart to stop. I don’t 

necessarily expect, especially in a two-year-old to see signs of a 

struggle. 

Id. at 280-81. 

Dr. Williams elaborated on this point in the following exchange with 

the prosecutor:

Q. If a child is face down in the water and pressure is applied to 

the back, do you expect to see marks?

A. No. 

Q. Would a child, a 32-pound toddler be able to flail and scratch?

A. Again, every case is individual, but I don’t necessarily expect 

to find any signs of a struggle. It all depends if you’re forcibly 

pounding the kid down. If you are holding someone under the 

surface of the water that would be sufficient.

____________________________________________

3 Although Steven’s heart function was restored through resuscitation, the 

blood supply to his brain had been cut off for too long, leaving him brain 

dead. Id. at 276.
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Q. If [Appellant] told the detective that the water was up to 

about her elbow, which would be almost to the top of the tub, 

that’s a fair amount of water; correct?

A. Yes, it is. 

Q. Now, ... in your expert opinion, ... it doesn’t take a lot of 

water to be forced into the mouth or the nose to cause 

drowning?

A. Again –

Q. Maybe that wasn’t very artfully phrased. I think the common 

thought is you have to ingest a large volume of water. 

A. Right.

Q. But that is not –

A. That is not necessarily the case at all, that is true. The 

circumstances vary widely, but simply the ability to get water 

injected into the upper airway is enough to have the effect of 

stopping the heart, stopping respiration.

Id. at 281-82. 

Based on Dr. Williams’ testimony, it was completely plausible that 

Appellant could have drowned Steven without leaving any physical evidence 

on his body consistent with a struggle. Thus, the very premise of 

Appellant’s claim, that evidence of a struggle was necessary to prove the 

manner and/or cause of death, is unfounded. 

Moreover, in Commonwealth v. Meredith, 490 A.2d 481 (Pa. 1980), 

our Supreme Court held that:

[W]here an adult is given sole custody of a child of tender years 

for a period of time, and, during that time the child sustains 

injuries which may have been caused by a criminal agency, the 

finder of fact may examine any explanation offered and, if they 

find that explanation to be wanting, they may reject it and find 

the person having custody of the child responsible for the 

wounds.
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Id. at 482-83.

Applying Meredith, the trial court explains: 

[Appellant’s] testimony that she was present when her son 

drowned also is sufficient to support the jury's conclusion that 

she caused his death. Her explanation that she was unable to 

lift her child from the bathtub is simply not worthy of belief. The 

video tape of her entering the hotel and registering shows her 

carrying Steven and lifting him without any difficulty whatsoever. 

[Appellant]'s trial testimony was glaringly different than what 

she told the officers each time she was interviewed on the day of 

and the day after the events at the hotel. During her statements 

to police, she indicated that she never left the bathroom and was 

sitting on the toilet seat with Steven the entire time. At trial, 

however, her story changed dramatically. She stated that she 

was distracted and out of the bathroom when she realized that 

she could not hear him playing anymore. She said that she went 

in and at that time, found him face down in the tub. She 

explained at trial, however, that her statements to the police 

officers were lies to cover up her inattentiveness because she 

was afraid that she would lose custody of Steven if it was 

determined that she had neglected Steven and allowed this to 

happen.

The Commonwealth also presented evidence showing 

various internet searches that [Appellant] conducted in the days 

and weeks leading up to her son's death. She read stories about 

Casey Anthony, the women accused of murdering her child, who 

claimed that at trial, that her father had molested the baby. As 

it is well known, Ms. Anthony was acquitted. She also did 

research on the internet what was the leading cause of the death 

of toddlers.

The facts presented to the jury were that this child was in 

the sole care and custody of his mother when he died. How that 

occurred was the key question at trial and obviously the 

Commonwealth only had circumstantial evidence to try to 

establish that what occurred constituted first[-]degree murder. 

The circumstantial evidence outlined above consisting of 

[Appellant]'s conduct before the incident at the hotel, her 

incredible description of how the death [occurred] in her 

interviews with the police, and then her completely contradictory 

testimony at trial provided the jury with sufficient evidence to 
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conclude that the death of Steven was intentional and at the 

hands of his mother.

TCO, 12-13 (citations omitted). 

We agree with the trial court. The circumstantial nature of the 

evidence against Appellant did not impede the result reached by the jury in 

this case. See Commonwealth v. Hardcastle, 546 A.2d 1101, 1107-08 

(Pa. 1988) (“There is no requirement that a homicide, including murder in 

the first degree, be proven by eyewitness testimony. Circumstantial 

evidence may be sufficient to prove any element, or all of the elements of 

the crime.”); Commonwealth v. Wentzel, 61 A.2d 309, 312 (Pa. 1948) 

(“Circumstantial evidence is, in the abstract, nearly, though perhaps not 

altogether, as strong as positive evidence; in the concrete, it may be 

infinitely stronger.”). Furthermore, pursuant to Meredith, the jury was 

permitted to reject Appellant’s inconsistent and, frankly, unbelievable 

explanations regarding her son’s death, and find instead that Appellant had 

drowned him. Finally, Appellant’s internet searches conducted prior to 

Steven’s death, regarding the Casey Anthony case and the leading causes of 

death for toddlers, provided adequate circumstantial evidence of Appellant’s 

premeditation, deliberation, and malice.4 As such, we conclude that 

Appellant’s sufficiency of the evidence claim lacks merit. 

____________________________________________

4 Although this Court has not found any Pennsylvania cases directly on point, 

we recognize that this circumstantial evidence is probative of Appellant’s 

mens rea for first-degree murder. In this regard, we find instructive our 

sister Commonwealth’s decision in Commonwealth v. Carey, 974 N.E.2d 

(Footnote Continued Next Page)
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015

 

(Footnote Continued) _______________________

624, 633 (Mass. 2012). In that case, the appellant contested the admission 

of the following evidence in his trial for the attempted murder of the victim 

by strangulation:

[E]ight photographs and [a] ninety-second video depicting 

women in various states of undress being strangled, ostensibly 

to death; [an] [i]nternet article regarding the successful appeal 

of a man convicted of four strangulation murders; and testimony 

regarding the number of explicit images and Internet searches 

found on the defendant's home computer.

Id. at 632. 

The High Court of Massachusetts held that the “images, and the 

testimony regarding the additional images and searches related to 

strangulation and asphyxiation stored on the [appellant]'s computer, were 

sufficiently similar to the way in which the [appellant] assaulted the victim to 

be relevant to and probative of his sexual desire and state of mind.” Id. at 

633. Similarly, Appellant’s inquiries into the leading causes of death for 

toddlers, and her research into the Casey Anthony case, provided evidence, 

albeit circumstantial, regarding Appellant’s premeditation so as to support 

the jury’s conclusion regarding the malice/intent-to-kill element of firstdegree murder.