J-S71036-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MALIK ANDERSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 425 EDA 2018

Appeal from the Judgment of Sentence October 15, 2014

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0011782-2013

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 19, 2019

Appellant Malik Anderson appeals from the judgment of sentence 

entered following his convictions for first-degree murder, firearms not to be 

carried without a license, and possessing an instrument of crime (PIC).1 

Appellant asserts that the trial court erred in failing to suppress two 

statements he made to police. Appellant also argues that his mandatory 

sentence of life imprisonment without the possibility of parole violates the 

Eighth Amendment of the United States Constitution and Article 1, § 13 of the 

Pennsylvania Constitution based upon the United States Supreme Court’s 

ruling in Miller v. Alabama, 567 U.S. 460 (2012).2 We affirm.

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1 18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 907, respectively.

2

In Miller, the United States Supreme Court held that a sentencing scheme 

that mandates life in prison without possibility of parole for juvenile homicide 
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The following is the relevant factual background to this matter.

3

 

Appellant, who was nineteen at the time of the crime, was charged with the 

shooting death of his friend, Daquan Crump, at a construction site in northeast 

Philadelphia on August 19, 2013. Crump had been shot eleven times in the 

head.

On August 20, 2013, Appellant’s parents took him to the Homicide Unit, 

where detectives were gathering information from individuals who knew 

Crump. Detective James Griffin and Detective Hank Glenn conducted an 

interview during which they obtained information about Appellant’s

background and his relationship with Crump. Appellant was at the Homicide 

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offenders is forbidden by the Eighth Amendment. See Miller, 567 U.S. at 

470.

3 On October 30, 2013, our Supreme Court decided In re L.J., 79 A.3d 1083 

(Pa. 2013). In L.J., our Supreme Court held that the appellate scope of 

review of a suppression ruling is limited to the evidentiary record that was 

created at the suppression hearing. L.J., 79 A.3d at 1087. Prior to L.J., this 

Court routinely held that, when reviewing a suppression court’s ruling, our 

scope of review included “the evidence presented both at the suppression 

hearing and at trial.” See Commonwealth v. Charleston, 16 A.3d 505, 516 

(Pa. Super. 2011) (citing Commonwealth v. Chacko, 459 A.2d 311, 317 n.5 

(Pa. 1983)). L.J. thus narrowed our scope of review of suppression court 

rulings to the evidence presented at the suppression hearing.

However, L.J. declared that the new procedural rule of law it announced was 

not retroactive, but was rather “prospective generally,” meaning that the rule 

of law was applicable “to the parties in the case and [to] all litigation 

commenced thereafter.” L.J., 79 A.3d at 1089 n.19. Since the litigation in 

the instant case commenced before L.J. was filed, the new procedural rule of 

law announced in L.J. does not apply to the case at bar. See id. Accordingly, 

in summarizing the evidence, we may include evidence presented both during 

the suppression hearing and at trial.
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Unit until the next evening, when he signed an exculpatory written statement

indicating that he found out from a friend, “Niam,” that Crump had died and 

that Appellant had last seen Crump at Appellant’s house around midnight on 

the night he was killed, when Crump left Appellant and a group of friends to 

go elsewhere. Appellant was released on the evening of August 21, 2013, 

after spending nearly thirty hours at the Homicide Unit.

On August 23, 2013, police took statements from two witnesses 

indicating that Appellant had confessed to them that he had murdered Crump. 

Also on August 23, 2013, the police executed a search warrant at Appellant’s

home at 1810 Tomlinson Road in Philadelphia. In executing the search 

warrant, the police seized a gun belonging to Appellant. The Firearms 

Identification Unit determined that the gun matched the ballistics evidence 

obtained from the crime scene and the body of Crump. After seizing the gun, 

detectives obtained an arrest warrant for Appellant. Police arrested Appellant 

at his home at 6:00 a.m. on August 28, 2013.

Police took Appellant to the Homicide Unit at around 7:00 a.m. on 

August 28, 2013. At 11:39 a.m., Detective Griffin and Detective Freddy Mole 

gave Appellant his Miranda4 warnings. At 11:45 a.m., Appellant began to 

give a second statement in which he admitted to killing Crump. He signed the 

statement at 1:40 p.m. 

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4 Miranda v. Arizona, 384 U.S. 436 (1966).
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As to the procedural history of this matter, on October 14, 2013,

Appellant filed a motion to suppress both statements he made to police. In 

his motion to suppress, Appellant asserted that he was arrested prior to giving 

both statements and that he was not warned of, nor did he waive, his Miranda

rights. See Ominbus Pretrial Mot., 10/14/13, at 2-3 (unpaginated).

Appellant testified at the suppression hearing that during the thirty-hour

period in which he was initially at the Homicide Unit, he was not offered 

anything to eat or drink other than water. N.T. Suppression Hr’g, 10/8/14, at 

32. Appellant was not able to sleep because

[t]hey [kept] coming in interrogating me. Just they wouldn’t allow 

me to sleep even if I wanted to. . . . I’ll say they kept bombarding 

the room. Like, even if I started to get comfortable on the table, 

they would just like, get off the table, like. Like, they wouldn’t 

allow me to get comfortable.

Id. at 33. Appellant had to be escorted any time he went to the bathroom. 

Id. Additionally, when asked if he was free to leave, Appellant stated: 

“Absolutely not. I wanted to leave, but they just said it doesn’t work like that, 

kid.” Id. Detective Griffin testified that Appellant “would have been given

water, soda, a coffee, whatever beverage he chose that we had there as well 

as if he wanted a snack or a sandwich or something, we would have gotten it 

for him.” N.T. Suppression Hr’g, 10/6/14, at 16. However, Detective Griffin 

also indicated that no requests were documented in the record and that he 

could not recall whether or not Appellant was provided with anything to eat or 

drink. Id.
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While Appellant was at the Homicide Unit, his mother retained 

Appellant’s trial counsel. Appellant’s mother telephoned the Homicide Unit 

approximately twelve times in an attempt to ask Detective Griffin to inform 

Appellant that he had an attorney. Appellant’s mother actually spoke with 

Detective Griffin on two occasions and informed him that Appellant was 

represented by counsel. Several days after Appellant was released, Appellant 

went to counsel’s office, where counsel told him not to say anything to police 

without an attorney present. 

In his second statement, after police arrested Appellant on August 28, 

2013, Appellant confessed to the crime, admitting that he killed Crump 

because of a dispute over the division of the proceeds of a theft. At the 

suppression hearing, Detective Griffin testified that Appellant was merely 

informed he was under arrest, and that no informal conversation with 

Appellant occurred between 7:00 a.m., when Appellant was arrested, and 

11:39 a.m., when Appellant was given his Miranda rights. Id. at 24. 

Detective Griffin stated that he read Appellant his Miranda warnings and that 

Appellant seemed to understand them and signed his name indicating that he 

understood the warnings. Id. at 26. The Commonwealth introduced a 

document into evidence with the Miranda warnings and Appellant’s initials 

and signature that he understood the warnings. See id. at 23-27.

Appellant, however, testified that after he was arrested, he repeatedly 

told the detectives that his counsel informed him not to say anything without 
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counsel present. See N.T. Suppression Hr’g, 10/8/14, at 38. Appellant also 

testified that he did not sign any papers that day. See id.

The trial court denied Appellant’s motion to suppress, making a 

credibility determination that Appellant “ha[d] to invoke his right to counsel 

personally. That was not done, in [the court’s] opinion.” N.T. Suppression 

Hr’g, 10/8/14, at 67. 

Thereafter, Appellant proceeded to a jury trial. The trial court 

summarized the remaining procedural history of this appeal as follows:

On October 15, 201[4], a jury found [Appellant] guilty of [the 

foregoing charges]. [Appellant] was immediately sentenced to life 

imprisonment for murder, three and one-half to seven years of 

imprisonment for [Section] 6106(a)(1) and two and one-half to 

five years of imprisonment for [PIC,] to run concurrently. On 

November 24, 2014, [Appellant] filed a pro[ ]se notice of appeal 

to the Superior Court. On March 2, 2015, the Superior Court 

quashed the appeal as untimely at No. 3463 EDA 2014. 

On September 9, 2015, [Appellant] filed a [pro se] PCRA[5]

Petition. Eileen Hurley, Esquire [(PCRA counsel)] was appointed 

to represent [Appellant]. [On August 7, 2017, PCRA counsel filed 

an amended PCRA petition[6]requesting the restoration of 

Appellant’s direct appeal rights nunc pro tunc.] On January 2, 

2018, th[e trial c]ourt granted relief and restored [Appellant’s] 

appellate rights. James F. Berardinelli, Esquire was appointed to 

represent [Appellant] on appeal. On February 1, 2018, 

[Appellant] by counsel filed a notice of appeal to the Superior 

Court.

Trial Ct. Op., 5/25/18, at 1-2.

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5 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

6 The record does not reveal why it took nearly two years for the amended 

PCRA petition to be filed following Appellant’s filing of his pro se PCRA petition.
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Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement after 

requesting and receiving an extension of time to do so. In his Rule 1925(b) 

statement, Appellant claimed that the trial court erred in denying his motion 

to suppress and that the mandatory imposition of a life sentence was 

unconstitutional under Miller. See Rule 1925(b) Statement, 4/20/18. The 

trial court issued a Pa.R.A.P. 1925(a) opinion suggesting no relief was due 

because: (1) Appellant was not in custody when he gave his first statement; 

(2) Appellant did not ask for a lawyer immediately before or while he gave his 

second statement; and (3) Miller did not apply because Appellant was 

nineteen years old when he committed the offenses. Trial Ct. Op., 5/25/18, 

at 5-6. 

On appeal, Appellant raises the following questions for our review:

1. Did the [trial] court err in denying [Appellant’s] Motion to 

Suppress his first statement where [Appellant] was not issued 

Miranda warnings and was held in custody for nearly 30 hours 

before the statement was obtained?

2. Did the [trial] court err in failing to suppress [Appellant’s] 

second statement where [Appellant] had previously indicated 

his desire for counsel by retaining an attorney and meeting and 

consulting with him?

3. Is [Appellant’s] sentence of life without parole a violation of 

the Eighth Amendment of the United States Constitution and 

Article 1, § 13 of the Pennsylvania Constitution under the 

rationale espoused by the Supreme Court of the United States 

in Miller v. Alabama . . . and its progeny?

Appellant’s Brief at 3.

In his first issue, Appellant asserts that 
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after homicide detectives determined that they were[] “keeping” 

[Appellant] to verify the information initially provide by him[,] 

they detained him for nearly 30 hours [without food]. Such 

circumstances overwhelmingly establish the functional equivalent 

of an arrest, since no reasonable person would feel their freedom 

of movement and action [were] not restricted under such 

circumstances. 

Id. at 10 (citing Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 

2001)). Additionally, “[a]fter being subjected to these conditions, [Appellant] 

was not given Miranda warnings. As a result[,] his subsequent responses to 

questions should have been suppressed.” Id.

We note that 

our standard of review in addressing a challenge to a trial court’s 

denial of a suppression motion is limited to determining whether 

the factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. We are 

bound by the suppression court’s factual findings so long as they 

are supported by the record; our standard of review on questions 

of law is de novo. Where, as here, the defendant is appealing the 

ruling of the suppression court, we may consider only the evidence 

of the Commonwealth and so much of the evidence for the defense 

as remains uncontradicted. Our scope of review of suppression 

rulings includes only the suppression hearing record and excludes 

evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations 

omitted).

It is well settled that 

[i]n Miranda, the United States Supreme Court held that a 

confession given during custodial interrogation is presumptively 

involuntary, unless the accused is first advised of his right against 

self-incrimination. Miranda warnings are not required where the 

interrogation is not custodial. A person is in custody for the 

purposes of a custodial interrogation when 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 
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action or movement is restricted by the interrogation. Police 

detentions become custodial when under the totality of the 

circumstances the conditions and/or duration of the detention 

become so coercive as to become the functional equivalent of 

arrest.

Among the factors the court utilizes in determining, under 

the totality of the circumstances, whether the detention 

became so coercive as to constitute the functional 

equivalent of arrest are: the basis for the detention; the 

location; whether the suspect was transported against his 

will; how far, and why; whether restraints were used; the 

show, threat or use of force; and the methods of 

investigation used to confirm or dispel suspicions.

Commonwealth v. DiStefano, 782 A.2d 574, 579-80 (Pa. Super. 2001)

(citations and internal quotation marks omitted).

In Yandamuri, the defendant asserted that his encounter with 

detectives that began at a casino was an illegal arrest unsupported by 

probable cause, and that all statements resulting from police questioning 

following the arrest should have been suppressed. Id. In support of his 

position, the defendant asserted that the detectives:

had casino security personnel and a state policeman escort him 

from a gaming table to a private hallway restricted for casino 

employees; precluded him from cashing in his chips; failed to 

return his casino player’s card; prohibited him from driving to the 

police station in his own vehicle; held his cell phone during the 

drive to the police station; and denied his requests to call his 

pregnant wife and answer her incoming call. [The defendant]

argue[d] that a reasonable person under similar circumstances 

would not have felt comfortable terminating the encounter at the 

casino and, instead, would have complied with the detectives’

request to accompany them to the police department solely out of 

fear. Accordingly, he contend[ed], all evidence stemming from 

the illegal detention at the casino, including his inculpatory written 

and video-taped statements given later at the police station, 

should have been suppressed.
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Id. at 516-17.

The trial court in Yandamuri credited testimony from a detective, and 

found that

two casino security officers and a Pennsylvania State Policeman 

made contact with Appellant at the blackjack table and asked him 

to come into the hallway; that [a detective] then asked [the 

defendant] if he would help in the investigation of Baby’s 

kidnapping by coming to the police station to answer questions; 

that without hesitation, [the defendant] said yes; that none of the 

officers told [the defendant] that he was required to speak with 

them, none of them were in uniform, and no badges or weapons 

were displayed; that prior to exiting the casino, [the defendant] 

asked to cash out his chips, which a casino employee did for him; 

that the detectives informed [the defendant] that they would drive 

him to the police station and return him to his vehicle when the 

questioning was concluded; that [the defendant] was not 

restrained while travelling in [the detective’s] unmarked vehicle; 

and that [the defendant] consented to [the detective] holding his 

cell phone during the ride and the phone was returned to him upon 

arriving at the police station without the detectives examining its 

contents. Based on the totality of these circumstances, the trial 

court concluded that [the defendant] was not under arrest or 

otherwise in custodial detention as a reasonable person in his 

circumstances would have felt free to decline the detectives’ 

requests.

Id. at 517. Our Supreme Court held that the facts as determined by the trial

court were supported by the record and that the legal conclusion that the 

defendant was not arrested or illegally detained was correct. Id.

In DiStefano, the trial court denied the defendant’s suppression 

motion, holding that he was not subjected to a custodial interrogation where:

1) at one point during the interrogation, after the tone of the 

interview had turned accusatory and confrontational, one of the 

officers told [the defendant] that if he was not going to tell the 

truth, he might as well leave; 2) [the defendant] was twice told 

that he was not under arrest; 3) [the defendant] came to the 
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barracks voluntarily; 4) [the defendant] was not hand-cuffed or 

isolated in a holding area; 5) [the defendant] was given beverages 

and bathroom breaks; 6) the door to the interview room was 

closed but not locked; and 7) [the defendant] did not himself 

believe he was in custody because at one point he asked if he 

could leave.

DiStefano, 782 A.2d at 580. 

However, this Court found that the trial court’s determination was in 

error based upon the totality of the circumstances:

The subject interrogation was admittedly designed to elicit an 

incriminating response. The detention occurred in the police 

barracks. [The defendant] was detained for eleven hours 

overnight. The only persons [the defendant] saw during that time 

were police officers. The interview turned confrontational and 

accusatory five hours before its conclusion with the police telling 

[the defendant] that they believed he was the perpetrator and 

that they did not believe his denials. The crime under 

investigation was murder. [The defendant’s] vehicle keys were 

taken from him and were not returned. At approximately 3:00 

a.m., [the defendant] expressed a desire to leave and was told 

“no. You know, you’re here. If you’re going to tell us, tell us.” 

Accordingly, we find that the police action physically and 

psychologically deprived [the defendant’s] freedom of movement 

and choice in a significant way and constituted a custodial 

interrogation.

Id. Accordingly, this Court overruled the trial court’s ruling on the suppression 

motion, finding that “the confession was given in violation of [the defendant’s] 

rights under Miranda and was not voluntary.” Id. at 584.

Here, the totality of the circumstances surrounding Appellant’s initial 

interview with police at the Homicide Unit was more akin to the facts in 

DiStefano than the facts in Yandamuri. Appellant was detained for nearly 

thirty hours and only saw police officers during that time. Appellant was not 

permitted to go to the restroom alone and was provided only with water during 
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his detention. Appellant expressed a desire to leave but was told it “doesn’t 

work like that.” N.T. Suppression Hr’g, 10/8/14, at 33. 

Accordingly, the trial court’s determination that Appellant was not “in 

custody” is not supported by the record and is erroneous. See Yandamuri, 

159 A.3d at 516. Rather, the police physically and psychologically deprived 

Appellant’s freedom of movement and choice in a significant way, which 

constituted a custodial interrogation that was coercive and intimidating. See

DiStefano, 782 A.2d at 580. As a result of the custodial interrogation to 

which Appellant was subjected during his first interview at the Homicide Unit, 

the written statement he made at the conclusion of the interview should have 

been suppressed. See id. at 584. 

Nevertheless, we must address the Commonwealth’s assertion that 

even if Miranda warnings were required during Appellant’s initial interview, 

the introduction of Appellant’s statements from that interview was harmless.

We note that “[a] suppression court’s error regarding failure to suppress 

statements by the accused will not require reversal if the Commonwealth can 

establish beyond a reasonable doubt that the error was harmless.” 

Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998).

Here, the contents of Appellant’s exculpatory statement were similar to 

the contents of the statement of another witness, Ryan Farrell, which was 

introduced into evidence. Specifically, Farrell stated that the evening before 

Crump was killed, at some point after 10:00 p.m., Farrell saw Crump in front 

of Appellant’s house. See Commonwealth’s Ex. 50 at 2 (unpaginated). Crump 
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indicated he was going to Frankford, and walked away, which was the last 

time Farrell saw Crump. Id. Therefore, because the statements of Appellant 

and Farrell contained substantially similar information and Farrell’s statement 

was properly introduced into evidence, the error in allowing Appellant’s initial 

statement to be introduced into evidence was harmless beyond a reasonable 

doubt. See Baez, 720 A.2d at 720.

In his second issue, Appellant asserts that 

[t]he Pennsylvania Supreme Court has recently addressed the 

remote invocation of the right to remain silent in Commonwealth 

v. Bland, 115 A.3d 854 (Pa. 201[5]). In Bland, the Court 

rejected [the] defendant’s claim that a letter from counsel six days 

before his questioning constituted an invocation of his right to 

remain silent. Specifically, the Court stated that “[Bland] simply 

did not invoke his rights in close association with custodial 

interrogation; in point of fact, [Bland] acceded to questioning at 

such time.” Bland, 115 A.[3]d at 862.

The instant case, however, stands in stark contrast to Bland. 

Here, [Appellant’s] counsel immediately[] invoked [Appellant’s] 

right to remain silent when [Appellant] was initially detained by 

police. Despite this invocation, the police subjected [Appellant] 

to questioning after he was detained on August 28, 2013. [Since 

Appellant had retained an attorney and met with the attorney, 

t]his questioning constituted a clear violation of [Appellant’s] right 

to remain silent and right to counsel, the fruits of which must be 

suppressed.

Appellant’s Brief at 10-11.

In Bland, the Pennsylvania Supreme Court rejected the defendant’s 

attempt to anticipatorily invoke his right to counsel in advance of custodial 

interrogation. Rather, the Court held that “to require a suspension of 

questioning by law enforcement officials on pain of an exclusionary remedy, 
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an invocation of the Miranda-based right to counsel must be made upon or 

after actual or imminent commencement of in-custody interrogation.” Bland, 

115 A.3d at 863.

Instantly, Appellant asserts that his counsel invoked his right to counsel 

for him. Appellant’s Brief at 10. This is contrary to the principle that “[a] 

defendant’s right to counsel is the defendant’s right and not the attorney’s

right.” Commonwealth v. Lowery, 419 A.2d 604, 607 (Pa. Super. 1980). 

Moreover, Appellant attempts to distinguish Bland on the grounds that

he allegedly invoked his right to counsel when the police questioned him 

following his arrest on August 28, 2013. However, at the suppression hearing, 

the trial court made a credibility determination that Appellant had not done 

so. See N.T. Suppression Hr’g, 10/8/14, at 67. The record reveals only that 

Appellant spoke with counsel several days before his arrest. Assuming the 

meeting with counsel is the basis for Appellant’s assertion of his right to 

counsel, it was not “upon or after actual or imminent commencement of incustody interrogation.” Bland, 115 A.3d at 863. Accordingly, no relief is due. 

See id.

In his final issue, Appellant argues that his sentence of life without 

parole is “a violation of the Eighth Amendment of the United States 

Constitution and Article 1, § 13 of the Pennsylvania Constitution under the 

rationale espoused by the Supreme Court of the United States in Miller v. 

Alabama[.]” Appellant’s Brief at 12. Appellant asserts that this is the case 

because “[r]ecent science . . . has determined that the immaturity, 
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impetuosity and failure to appreciate risks and consequences on which 

Miller’s holding is rooted, continue into [a person’s] mid-20’s[.]” Id.

The holding in Miller applies to juveniles under the age of eighteen. 

Appellant provides no case, and we are unaware of any, which extends its 

holding to individuals over the age of eighteen at the time they committed 

murder. Because Appellant was nineteen at the time of the crime in the 

instant matter, he cannot avail himself of the holding in Miller. See, e.g.,

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (holding 

that “petitioners who were older than 18 at the time they committed murder 

are not within the ambit of the Miller decision”). 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/19