J-A32007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY J. SCHOLL, JR.,

Appellant No. 1337 WDA 2014

Appeal from the Judgment of Sentence July 17, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0004828-2013

BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 31, 2015

Appellant, Anthony J. Scholl, Jr., appeals from the judgment of 

sentence imposed following his convictions of attempted homicide, 

aggravated assault, and recklessly endangering another person (“REAP”). 

We affirm.

The trial court summarized the underlying facts of this case as follows:

On September 5, 2012, at approximately 10:30 P.M., Colin 

Albright rode his bicycle from the Squirrel Hill section of the City 

of Pittsburgh to the South Side section of the city. As he 

traveled along Hot Metal Street, Albright exited the bike path 

and entered the roadway in front of Appellant’s vehicle. 

Albright’s actions apparently offended Appellant who was driving 

his vehicle on Hot Metal Street. Consequently, Appellant 

followed Albright as he made his way to a set of city steps which 

led from Harcum Way to Josephine Street. Albright began to 

ascend the steps towards his home, which was on Josephine 

Street, carrying his bicycle over his shoulder. Appellant parked 

his vehicle and ran up the stairs to confront Appellant. (T.T.(I) 

38, 40-41, 43; T.T.(II) 39-40, 42, 174-176).4
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4 The designation “T.T.(I)” followed by numerals 

refers to Trial Transcript, March 3, 2014. The 

designation “T.T.(II)” refers to Trial Transcript, 

March 3-5, 2014.

When Albright heard Appellant approaching from behind, 

Albright moved out of the way to allow Appellant to pass him on 

the stairs. Instead, Appellant stopped and began to stab 

Albright in the back of the head and shoulder. Albright, 

believing he was being robbed, told Appellant that he could take 

the bicycle. Appellant grabbed Albright by the top of the head, 

and slit Albright’s throat lengthwise, from ear to ear. At the 

same time, Albright pushed the bicycle towards Appellant, who 

took the bicycle, ran down the steps, threw the bicycle over the 

railing, and fled in his car. (T.T.(I) 43-46; T.T.(II) 50).

Albright immediately called 911 and wrapped his shirt 

around his neck in an attempt to stop the bleeding. The 911 

dispatcher was unable to ascertain Albright’s location without a 

street address, so Albright made his way to the Birmingham 

Bridge Tavern, which was approximately four blocks away, to 

await assistance. (T.T.(I) 46-52; T.T.(II) 31-32, 43). Albright 

was emergently transported to the hospital where he remained 

for approximately five days. Appellant had severed Albright’s 

external jugular vein and several other arteries in his neck. 

Albright received twenty-one sutures in his neck and fifteen 

staples for the stab wounds to his head. At the time of trial, 

Albright was still undergoing physical therapy and had significant 

and permanent scarring to his head, shoulder, and neck. 

(T.T.(I) 33, 53-56; T.T.(II) 7, 11, 14, 17).

Albright assisted the police in creating a composite sketch 

of his attacker. (T.T.(II) 17, 108-112). Upon further 

investigation and tips received from the public, Appellant was 

identified as a suspect. Albright identified Appellant from a 

photo array as being very similar to the individual who attacked 

him, and Appellant confessed to the attack during a subsequent 

interview. (T.T.(II) 23, 167-180, 200).

Trial Court Opinion, 1/15/15, at 8-10.
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In a criminal information dated October 25, 2012, and filed on June 

11, 2013, Appellant was charged with the crimes of criminal attempt 

(homicide), aggravated assault – serious bodily injury, and REAP. On July 9, 

2013, Appellant filed an omnibus pretrial motion seeking to suppress his 

confession and statements to police, and his identification. The suppression 

court held a hearing December 2 through December 3, 2013. In an order 

dated December 29, 2013, the suppression court denied the motion to 

suppress.1

On March 5, 2014, a jury convicted Appellant of the three crimes 

stated above. On July 17, 2014, the trial court sentenced Appellant to serve 

a term of incarceration of seven to fourteen years, to be followed by a term 

of probation of five years for the conviction of attempted homicide. For the 

crime of REAP, the trial court sentenced Appellant to serve a consecutive 

term of probation of two years. This timely appeal followed. Both Appellant 

and the trial court have complied with Pa.R.A.P. 1925.2

Appellant presents the following issues for our review:

I. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO 

SUPPRESS INSOFAR AS [APPELLANT’S] CONFESSION WAS THE 

____________________________________________

1 We observe that the December 29, 2013 order of the suppression court 

was filed, along with the suppression court’s opinion, on January 8, 2015. 

Docket Number 22.

2 We note that Judge Jeffrey A. Manning presided over Appellant’s motion to 

suppress and that Judge Edward J. Borkowski presided at Appellant’s jury 

trial.
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FRUIT OF AN ILLEGAL ARREST BECAUSE THE POLICE HAD NO 

REASONABLE SUSPICION OR PROBABLE CAUSE AT THE TIME 

THEY HANDCUFFED HIM, PLACED HIM IN LEG-IRONS AND 

TRANSPORTED HIM FROM THE COUNTY JAIL TO THE HOMICIDE 

OFFICE TO BE INTERVIEWED?

II. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO 

SUPPRESS INSOFAR AS [APPELLANT’S] RIGHT TO COUNSEL 

UNDER THE FIFTH AMENDMENT AND ARTICLE 1, § 9 OF THE 

PENNSYLVANIA CONSTITUTION, WAS VIOLATED WHERE HE HAD 

OBTAINED COUNSEL FOR AN EARLIER, UNRELATED OFFENSE, 

AND THE POLICE SUBSEQUENTLY INITIATED INTERROGATION 

REGARDING THE INSTANT OFFENSE WITHOUT THE PRESENCE 

OF COUNSEL; AND HIS PURPORTED WAIVER OF COUNSEL 

AFTER BEING GIVEN MIRANDA WARNINGS,[3] WAS INVALID?

III. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO 

SUPPRESS INSOFAR AS [APPELLANT] DID NOT KNOWINGLY AND 

VOLUNTARILY WAIVE HIS MIRANDA RIGHTS BECAUSE HE 

SUFFERED FROM MENTAL ILLNESS AND WAS SUBJECTED TO 

COERCIVE TACTICS?

IV. DID THE TRIAL COURT ERR IN RULING THAT THE 

TESTIMONY OF WITNESSES WHO WOULD HAVE SUPPORTED 

[APPELLANT’S] CLAIM THAT HIS STATEMENT WAS 

INVOLUNTARY, WAS INADMISSIBLE AT TRIAL?

Appellant’s Brief at 5.

In his first three issues, Appellant argues that his motion to suppress 

his statement to the police was improperly denied. With respect to an 

appeal from the denial of a motion to suppress, our Supreme Court has 

stated the following:

Our standard of review in addressing a challenge to a trial 

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

____________________________________________

3 Miranda v. Arizona, 384 U.S. 436 (1966).
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findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When reviewing 

the ruling of a suppression court, we must consider only the 

evidence of the prosecution and so much of the evidence of the 

defense as remains uncontradicted when read in the context of 

the record. . . . 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.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations 

omitted). “It is within the suppression court’s sole province as factfinder to 

pass on the credibility of witnesses and the weight to be given their 

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 

2006).4

Further, we are aware that Pa.R.Crim.P., which addresses the 

suppression of evidence, provides in relevant part as follows:

(H) The Commonwealth shall have the burden . . . of 

establishing that the challenged evidence was not obtained in 

violation of the defendant’s rights.

____________________________________________

4 On October 30, 2013, our Supreme Court decided In re L.J. In L.J., our 

Supreme Court held that our scope of review from a suppression ruling is 

limited to the evidentiary record that was created at the suppression 

hearing. In re 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.” Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super. 2011) 

(quoting Commonwealth v. Chacko, 459 A.2d 311 (Pa. 1983)). L.J. thus 

narrowed our scope of review of suppression court rulings to the evidence 

presented at the suppression hearing. In this case, Appellant’s suppression 

hearing was held after L.J. was decided. Therefore, we will apply the rule 

announced in L.J. to the case at bar. See L.J., 79 A.3d at 1089 (stating 

holding applies to “all litigation commenced Commonwealth-wide after the 

filing of this decision”).
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Pa.R.Crim.P. 581(H).

Initially, Appellant claims that his confession was the fruit of an illegal 

arrest because the police lacked probable cause when they handcuffed him 

and took him from the county jail, where he was incarcerated on unrelated 

charges, to the homicide office to be interviewed regarding the instant 

crimes. Appellant’s Brief at 27-30. Basically, Appellant contends that his 

transportation to the homicide office amounted to the functional equivalent 

of an arrest, which required the police to possess probable cause.

The Fourth Amendment to the United States Constitution 

and Article I, Section 8 of the Pennsylvania Constitution protect 

individuals from unreasonable searches and seizures, thereby 

ensuring the “right of each individual to be let alone.” 

Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d 

854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa. 

Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002). However, 

as explained below, police are not required to possess probable cause in 

order to transport a prisoner from jail to a police station to be interviewed in 

connection with another crime, and prisoners are not arrested under these 

circumstances because they are, by virtue of their pre-existing incarceration, 

already validly within state custody. Our Supreme Court analyzed this issue 

in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that the 

transfer of a defendant from jail to the offices of a criminal investigation 

division

did not implicate appellant’s rights under the Fourth 

Amendment. At the time appellant was moved . . . , he was 
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already a prisoner serving time on unrelated charges; he was 

already unquestionably “seized” for purposes of the Fourth 

Amendment. The only change in appellant’s status . . . was the 

location of his custody. The transfer from jail to the . . . offices 

. . . did not constitute a separate seizure of appellant under the 

Fourth Amendment for the obvious reason that he was already 

lawfully in custody.

Id. at 846. See also Commonwealth v. Watkins, 750 A.2d 308, 314 (Pa. 

Super. 2000) (stating that “[d]ue to the administrative nature of the 

transport process used by the police herein and the fact that prisoners’ 

Fourth Amendment rights are not coextensive with those of free citizens, we 

decline to require police officers to possess probable cause when 

transporting prisoners to police stations for custodial interrogation.”).

In concluding that Appellant’s motion to suppress based upon an 

alleged illegal arrest or detention lacked merit, the suppression court 

concluded that “[t]he facts in this matter are nearly identical [to the facts in 

Watkins] and require the same result.” Suppression Court Opinion, 

1/29/13, at 11. Likewise, the trial court offered the following apt discussion 

with regard to this issue:

Appellant first argues that his statement should have been 

suppressed because he was illegally detained. Appellant was 

housed in the Allegheny County Jail on unrelated charges. On 

October 25, 2012, detectives from the homicide office 

transported him to their office to be interviewed about the 

stabbing of Albright. (M.T. 8, 81).[5] However, contrary to 

Appellant’s argument that this situation resulted in the arrest of 

____________________________________________

5 The citation “M.T.” refers to the notes of testimony from the suppression 

hearing transcript of December 2-3, 2013.
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Appellant for the instant offense, the transportation order was 

merely the procedural means used to interview an incarcerated 

suspect. (M.T. 8, 81). Appellant was not arrested for the 

stabbing of Albright at the time of his interview, and he was free 

to request that the interview be terminated and that he be 

returned to the jail at any time, which he chose not to do. (M.T. 

82-83, 85). Thus while Appellant was in custody on unrelated 

charges, he was free to terminate the contact with the homicide 

detectives on this case. Appellant was not illegally detained 

under the United States or Pennsylvania constitutions, and [the 

suppression court’s] decision to deny the suppression is 

supported by the record. See Commonwealth v. Watkins, 

750 A.2d 308, 313-314 (Pa. Super. 2000) (defendant who was 

transported from jail to police station on unrelated charges was 

not arrested as a result of the transportation order, and 

statement was found to be voluntary where defendant read and 

waived his Miranda rights and did not assert any physical or 

psychological misconduct or intimidation by the police). 

Appellant’s claim is without merit.

Trial Court Opinion, 1/15/15, at 12-13.

Our review of the record reflects that the transportation process 

employed in this matter was routine, the process was effectuated by a court 

order, Appellant was not coerced into speaking with police about the instant 

crime, and he was Mirandized prior to questioning. Thus, we conclude 

Appellant’s claim that the police were required to possess probable cause to 

transport Appellant from the county jail to another police facility for 

questioning lacks merit.

In his second issue, Appellant argues that his motion to suppress 

should have been granted based upon an allegation that his constitutional 

right to counsel was violated. Appellant’s Brief at 30-37. Specifically, 

Appellant claims that his right to counsel under the Fifth Amendment to the 
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United States Constitution and Article 1, § 9 of the Pennsylvania Constitution 

was violated because he had counsel for an unrelated offense, and the police 

initiated an interrogation on the instant crimes without the presence of 

counsel.

At the outset, we observe that in Commonwealth v. Arroyo, 723 

A.2d 162 (Pa. 1999), our Supreme Court reviewed the differences between 

the Fifth Amendment Miranda rights6and the Sixth Amendment “right to 

counsel” as set forth by the United States Supreme Court in Moran v. 

Burbine, 475 U.S. 412 (1986). Our Supreme Court summarized as follows:

The [United States Supreme] Court noted that the “right to 

counsel” of which Miranda warnings inform a suspect does not 

spring from the Sixth Amendment right to counsel, but rather is 

a judicially created procedural device by which the suspect’s 

Fifth Amendment privilege against self-incrimination is 

protected. The Court explained that the Sixth Amendment right 

to counsel is distinct from the right to counsel mentioned in a 

Miranda warning. A suspect has a right to be told his Miranda

warnings at the point custodial interrogation begins. The Sixth 

Amendment right to counsel, on the other hand, by its very 

terms . . . becomes applicable only when the government’s role 

____________________________________________

6

In Miranda, the Supreme Court set forth safeguards to protect a person’s 

rights under the Fifth Amendment to the United States Constitution which 

provides that a criminal defendant cannot be compelled to be a witness or 

give evidence against himself. Miranda, 384 U.S. at 461. The Court held 

that any statements or confessions made during a custodial interrogation 

must be suppressed unless, prior to making such statements, the individual 

was informed of his right to remain silent and right to an attorney and made 

a knowing, intelligent and voluntary waiver of those rights. Id. at 444. For 

a waiver of these rights to be valid, the defendant must be adequately 

apprised of and understand his rights and the consequences of waiving those 

rights, and must not be threatened, forced, or coerced to waive his rights in 

any way. Commonwealth v. DeJesus, 787 A.2d 394, 402 (Pa. 2001).
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shifts from investigation to accusation. Therefore, a suspect 

has no Sixth Amendment right to counsel until the first 

formal charging proceeding has transpired, and it can be 

said that the formal initiation of adversarial judicial 

proceedings has occurred. The Court concluded that since 

the inculpatory statements at issue in Moran were given prior to 

the defendant being charged with the crime, then the defendant 

had no Sixth Amendment right which could be violated. The 

Court also specifically declined the defendant’s invitation to 

extend the protections of the Sixth Amendment to the 

prearraignment phase of proceedings as such a holding would 

not be consistent with the Sixth Amendment’s purpose of 

protecting an individual who is the focus of the state’s 

prosecutorial power.

Arroyo, 723 A.2d at 166 (quotation marks and citations omitted) (emphasis 

added).

In Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012), our 

Supreme Court further summarized the Sixth Amendment right to counsel 

and its limits as follows:

The Sixth Amendment right to counsel is offense-specific; 

it cannot be invoked once for all future prosecutions, and it only 

attaches at the commencement of prosecution, i.e., when 

criminal proceedings are initiated by charge, preliminary hearing, 

indictment, information, or arraignment. Once the right has 

attached at the initiation of proceedings for a specific offense, 

the defendant may not be questioned further regarding that 

offense without counsel present; the right’s purpose is to protect 

the unaided layman at critical confrontations with his expert 

adversary, the government, after the adverse positions of 

government and defendant have solidified with respect to a 

particular alleged crime. However, a defendant whose Sixth 

Amendment right to counsel has attached regarding one 

offense may be questioned about other offenses for which 

prosecution has not commenced, and statements made 

regarding other offenses are admissible in a trial for 

them.

Id. at 1065 (citations and quotations omitted) (emphasis added).
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In Arroyo, our Supreme Court stated that “the right to counsel, as 

guaranteed by Article I, Section 9 of the Pennsylvania Constitution, is 

coterminous with the Sixth Amendment right to counsel for purposes of 

determining when the right attaches.” Arroyo, 723 A.2d at 170. Here, to 

the extent that Appellant alleges that his right to counsel under Article I, 

Section 9 of the Pennsylvania Constitution, and thus his Sixth Amendment 

right to counsel, were violated, we conclude that because adversarial 

proceedings had not been commenced in the instant action at the time that 

Appellant was interviewed about the crime, the right to counsel had not yet 

attached, and questioning about the instant offense was permissible. 

Therefore, Appellant’s assertion that his right to counsel under Article I, 

Section 9 of the Pennsylvania Constitution was violated fails.

We next address Appellant’s claim that the waiver of his Miranda

rights was invalid.7 In essence, Appellant claims that questioning of 

Appellant on the instant matter should not have occurred because police 

were aware that Appellant was represented by counsel and knew that 

counsel did not want Appellant to speak without counsel present.

In Commonwealth v. Rushing, 71 A.3d 939 (Pa. Super. 2013), 

reversed on other grounds, 99 A.3d 416 (Pa. 2014), we reiterated that “the 

____________________________________________

7 We note that in Arroyo, our Supreme Court reasoned that the privilege 

against self-incrimination under the Pennsylvania Constitution, found in 

Article I, § 9, affords the same protection as its corresponding federal 

provision, the Fifth Amendment. Arroyo, 723 A.3d at 166-167.
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Fifth Amendment right to counsel is a personal right which can only be 

invoked by the person holding that right. Accordingly, whether an 

attorney physically appears in an attempt to represent the accused does not 

alter the fact that it is the accused who must invoke his Fifth 

Amendment right to counsel.” Id. at 951 (emphases added). See also 

Keaton, 45 A.3d at 1067 (observing that Fifth Amendment rights apply only 

when the suspect has expressed his wish for the particular sort of lawyerly 

assistance that is the subject of Miranda). Therefore, it is only Appellant 

who could invoke his Miranda rights.

In addressing Appellant’s waiver of his Miranda rights prior to 

interrogation, the suppression court made the following well-reasoned 

conclusion:

Here, [Appellant] was in custody when interrogated, but 

he was advised of his [Miranda] rights and executed a waiver of 

those rights. [Appellant] was warned, orally and in writing, of 

the consequences of agreeing to speak with the police without 

the presence of his attorney. [Appellant] was told that he had 

the right to refuse to speak with them or to consult with an 

attorney before making that decision. [Appellant] chose, 

according to the credible evidence presented at this hearing, to 

waive those rights and give a voluntary statement to the police.

Counsel’s attempt to invoke these rights for [Appellant] 

was also ineffective. . . . Counsel’s phone call to [a City of 

Pittsburgh police detective] did not invoke [Appellant’s] right; 

only [Appellant] was capable of doing that. [Appellant] was 

given the opportunity to do so, but, instead, chose to waive his 

right to counsel and speak with the detectives.

Suppression Court Opinion, 12/29/13, at 13-14.
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Upon review of the record before us, we discern no error which would 

compel us to reverse the determination of the suppression court. 

Accordingly, we conclude that Appellant’s claim lacks merit.

In his third issue, Appellant continues his argument that the 

suppression court erred in failing to grant his motion to suppress his 

statements to police. Appellant’s Brief at 37-40. Specifically, Appellant 

contends that the waiver of his Miranda rights was not knowing and 

voluntary because he suffered from mental illness and was subjected to 

coercive police tactics.

As noted, under Miranda, police officers are required to inform a 

suspect prior to questioning that he has the right to remain silent, that any 

statement made may be used against him, and that he has the right to an 

attorney. Miranda, 384 U.S. at 444. “The defendant may waive

effectuation of these rights, provided the waiver is made voluntarily, 

knowingly and intelligently.” Id. “It is the Commonwealth’s burden to 

establish whether [the accused] knowingly and voluntarily waived his 

Miranda rights. In order to do so, the Commonwealth must demonstrate 

that the proper warnings were given, and that the accused manifested an 

understanding of these warnings.” Eichinger, 915 A.2d at 1135-1136.

In order to determine if a proper waiver of Miranda rights has 

occurred, the following test is employed:

The voluntariness standard of Miranda requires that the 

prosecution prove by a preponderance of the evidence that the 
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waiver is knowing and intelligent. This requires a two-step 

analysis. First, the waiver must have been voluntary in the 

sense that it was an intentional choice made without any undue 

governmental pressure; and, second, that the waiver must have 

been made with a full comprehension of both the nature of the 

right being abandoned and the consequences of that choice. We 

employ a totality of circumstances test in reviewing the waiver. 

We are bound also by the suppression court’s findings of fact if 

they are supported by competent evidence.

Commonwealth v. Logan, 549 A.2d 531, 537 (Pa. 1988) (citation 

omitted).

In Logan, “[t]he [a]ppellant was convicted by a jury of . . . firstdegree murder and possession of an instrument of crime for axing to death a 

stranger on a public bus containing five other passengers.” Id. at 534. 

After the appellant was apprehended and taken to the police station, he was 

read his Miranda warnings, waived those rights, confessed to committing 

the killing, and was charged with first-degree murder. Id. at 535. Following 

his arrest and during his trial, the appellant was confined to a mental 

hospital. Id. He had also been institutionalized for mental illness prior to 

committing the murder. Id.

Before trial, the appellant filed a motion to suppress his confession, 

arguing that his mental illness prohibited him from knowingly and 

intelligently waiving his Miranda rights. Id. The trial court denied the 

motion, a jury ultimately convicted the appellant of first-degree murder, and 

he was sentenced to death. Id. Our Supreme Court summarized the facts 

surrounding the appellant’s waiver of Miranda rights as follows:
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Uncontested police testimony shows that the [a]ppellant was 

taken to the interview room of the Police Administration Building 

where he was read Miranda rights from the Standard Police 

Interrogation Card. [The] [a]ppellant orally indicated at that 

time that he understood each warning and even asked for 

clarifications. He then gave a confession which was written out 

by the interviewing officer who reduced it to typewritten form. 

[The] [a]ppellant read his typed confession aloud into a tape 

recorder and signed each page. Prior to giving this confession, 

he was advised again of the Miranda rights. The [a]ppellant 

apprised the interviewing officer of the fact that he could read 

and write English because he had gone to the eleventh grade in 

school. He also denied any recent use of drugs except for a 

“reefer” which he had smoked several days before the crime. 

There was no evidence that the [a]ppellant had been coerced or 

induced by the police into making the confession.

Logan, 549 A.2d at 536–537.

In analyzing whether the circumstances confirmed that the appellant’s 

waiver of his Miranda rights was voluntary and intelligent, our Supreme 

Court emphasized “that defendants with proven psychological defects are 

capable indeed of waiving their constitutional rights and giving voluntary 

confessions.” Logan, 549 A.2d at 537 (citations omitted). The Logan

Court then assessed the voluntariness of the appellant’s confession under 

the two-prong standard. Id. Ultimately, the Court concluded that, 

regardless of the appellant’s mental illness, the circumstances of his 

confession revealed that the waiver was “the product of free, unconstrained, 

and rational choice of its maker.” Id. The Court in Logan determined that 

the evidence demonstrated the appellant “was aware of the nature of the 

right which he was surrendering and of the consequences of that choice.” 

Id. at 537-538. See also Commonwealth v. Bracey, 461 A.2d 775, 782 
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n.7 (Pa. 1983) (stating that “a person with a mental illness including a 

history of hallucinations and delusions may be capable of waiving her 

constitutional rights”).

Here, the suppression court made the following relevant findings of 

fact:

3. On October 9, 2012, [Appellant] was alleged to have set the 

porch to his parent’s house on fire. Although he was eventually 

charged with one count of Arson, one count of Risking a 

Catastrophe and two counts of Recklessly Endangering Another 

Person as a result of that, those charges were not filed until 

October 19, 2012.2 On October 9, [Appellant] voluntarily 

committed himself to Jefferson Regional Medical Center’s 

psychiatric ward, where he remained until discharge on October 

19, 2012.

2 Those charges were withdrawn at the November 

11, 2012 preliminary hearing.

4. The Jefferson records reported that [Appellant] suffered from 

homicidal ideation concerning his parents and experienced 

command auditory hallucinations. At discharge, he was still 

noted to have a depressed mood, but no psychotic thinking and 

denied any homicidal or suicidal ideation. He was directed to 

follow up with outpatient care and had an appointment 

scheduled for October 25, 2012. (Exhibit A).

5. After his discharge from Jefferson, he was charged with the 

arson offenses and remanded to the County Jail as he was 

unable to post bail.

* * *

13. On October 25, 2012, in the morning, Detectives Bolin and 

McGee obtained a Court Order permitting them to transport 

[Appellant] to their office to be interrogated. (N.T. 81). 

Detective McGee stated that during his interview, [Appellant] 

seemed responsive to his questions and that there was nothing 

out of the ordinary about his demeanor as he was speaking with 

them. (N.T. 9).
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14. When [Appellant] was told that they wanted to talk to him 

about a stabbing on the South Side, [Appellant] initially denied

any knowledge. At this point, Detective McGee suggested to 

[Appellant] that they call his mother and have her come out and 

sit down and talk with him. According to Detective McGee, 

[Appellant] thought that was a good idea and [Appellant’s] 

mother was called. (N.T. 9).

15. [Appellant’s mother] arrived at approximately 12:30 p.m. 

and met with her son for approximately 35 to 40 minutes. She 

then came out of the room and told the detective that 

[Appellant] wanted to tell them what had happened that night. 

(N.T. 10).

16. Detective McGee, prior to resuming his discussion with 

[Appellant], informed him of his Miranda Rights by reading to 

him from a Pittsburgh Police Miranda Rights form. That form 

was admitted as Commonwealth Exhibit 1. It bears the 

signatures of Detective McGee, [Appellant] and [Appellant’s 

mother]. The detective read the questions out loud and then 

recorded [Appellant’s] answers. He then handed the form to 

[Appellant] for his review. He observed as [Appellant], and then 

[Appellant’s] mother, Patricia Arlett, signed the form. (N.T. 11).

* * *

23. [Appellant] was evaluated at the Court’s Behavior 

Assessment Unit and report was issued on October 30, 2012. He 

was deemed incompetent to stand trial because his psychiatric 

symptoms were significant barriers in cooperating with his 

attorney. [Appellant] did, however, have a factual and rational 

understanding of the charges against him. (Court Exhibit 1 A).

24. [Appellant] was reevaluated by the Behavior Assessment 

Unit on November 12. He was still deemed incompetent on the 

same basis. It was recommended that [Appellant] be 

transferred to Torrance State Hospital. (Court Exhibit 1 B).

25. The forensic summary from Torrance stated that [Appellant] 

was “....suspicious, paranoid towards others and responding to 

voices most likely. He has poor insight, poor judgment and poor 

impulse control.” (Exhibit B). [Appellant’s] diagnoses were: 

“Psychosis, not otherwise specified”; “Bipolar Disorder, not 
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otherwise specified” and “Marijuana Abuse, in Remission 

Secondary to Controlled Environment” at Axis I and “Antisocial 

Personality Disorder” at Axis II. (Exhibit B).

Suppression Court Opinion, 12/29/13, at 3-10.

In concluding that Appellant voluntarily waived his Miranda rights, the 

suppression court offered the following thoughtful analysis, which we adopt:

[Appellant] contends that his statement was not voluntary 

because he was not competent to waive his rights as a result of 

mental illness. This claim has given this Court the most 

difficulty. There can be no dispute that [Appellant] suffered, at 

the time of his interrogation, from severe mental illness. There 

are psychiatric records from before and after the date he gave 

his statement which reveal that [Appellant] suffers from 

psychosis and bipolar disorder. They further reveal that he 

experienced auditory hallucinations, homicidal and suicidal 

ideation. He was determined by this Court’s behavior 

assessment unit to be incompetent five days after he provided 

his statement to the police. Those records reveal that 

[Appellant] stopped taking the medications that had been 

prescribed at Jefferson and which greatly improved his mental 

health upon his discharge on the 19th. He did not resume taking 

them until October 27, which means that when he was taken to 

the homicide unit on the 25th, he had been off of his medication 

for at least 6 days.

* * *

Here, there is evidence that a few days after his 

statement, [Appellant] was not competent. Clearly, he suffered 

from mental illness. The record does not establish, however, 

that that illness prevented him from fully understanding his 

rights and voluntarily waiving those rights on October 25, 2012. 

The only evidence on the record concerning [Appellant’s] 

condition that day is the testimony from those who were with 

him around the time he gave his statement; Detectives McGee 

and Bolin and [Appellant’s] mother. None of them testified as 

to any apparent difficulty [Appellant] was having that day 

understanding his rights and interacting appropriately with the 

detectives. His mother was asked if she told him not to talk to 

the police because she thought he did not know what was going 
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and she responded, “No.” (N.T. 76). When asked if she had any 

concerns about his ability to understand what was going on and 

she responded, “I don’t know. I mean, I did, but I wasn’t sure. 

Like I said, I was scared.” (N.T. 76).

In the absence of testimony from an expert stating that, at 

the time [Appellant] gave his statement he was unable, due to 

mental illness, to knowingly and voluntarily waive those rights, 

this Court is constrained to conclude that [Appellant’s] waiver

was knowing, intelligent and voluntary. While the records 

offered established that the defendant is mentally ill, they did 

not establish that his illness was such that he was not capable of 

giving a knowing, voluntary and intelligent waiver of his rights. 

Based on the evidence presented at the suppression hearing, the 

Court finds that the Commonwealth has met its burden, by the 

slimmest of margins, of establishing that [Appellant’s] Miranda

waiver was knowing, intelligent and voluntary.

Suppression Court Opinion, 12/29/13, at 14-17. Likewise, upon review of 

the certified record, we conclude that, despite Appellant’s mental health 

issues, he knowingly and intelligently waived his Miranda rights on October 

25, 2012. Hence, we conclude that Appellant’s contrary claim lacks merit.

In addition, Appellant contends that the waiver of his Miranda rights 

and subsequent confession was not voluntary due to the alleged coercive 

conduct of the police. Appellant alleges that the police offered to reduce the 

charges filed against Appellant in exchange for a statement. Appellant’s 

Brief at 40. However, upon review we conclude that this claim also lacks 

merit.

“The determination of whether a confession is voluntary is a conclusion 

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

Roberts, 969 A.2d 594, 599 (Pa. Super. 2009). In evaluating the 
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voluntariness of a confession, this Court looks at the totality of the 

circumstances to determine whether, because of police conduct, the 

defendant’s “will has been overborne and his capacity for self-determination 

critically impaired.” Id. at 598-599 (citation omitted).

Here, the suppression court made the following finding of fact with 

regard to whether the police promised Appellant a reduction in charges in 

order to coerce a confession:

18. [Appellant’s] mother testified that she was promised 

that if [Appellant] gave a statement, the charges would be 

reduced to simple assault. She further claimed to only have 

talked to [Appellant] for a few minutes; that she was not present 

when [Appellant] was advised of his rights and that she thought 

the interrogation rights waiver form she signed was actually an 

agreement to reduce the charges. The Court does not find 

these assertions credible. The interrogation rights form, a 

single page form, states, in bold, capital letters across the top, 

“CITY OF PITTSBURGH BUREAU OF POLICE MIRANDA RIGHTS 

FORM.” (See Exhibit 1). The body of the form is in a series of 

questions. [Appellant’s mother’s] signature is directly below that 

last question and it is inconceivable that someone could mistake 

this form for anything other than what it is.

Suppression Court Opinion, 12/29/13, at 8 (emphases added). Our review 

of the certified record reflects no evidence beyond the testimony of 

Appellant’s mother that Appellant was induced into making a statement with 

the claim that he would receive reduced charges. Accordingly, we are left to 

conclude that the discredited statement from Appellant’s mother does not 

support his allegation. Therefore, this claim lacks merit.

Appellant’s final argument is that the trial court erred in failing to 

admit into evidence testimony from Appellant’s previous attorney and a 
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medical expert regarding whether Appellant’s made a voluntary confession 

to the police about the present incident. Appellant’s Brief at 41-43. 

Specifically, Appellant contends that his proffered testimony from Attorney 

Daniel Joyce concerning counsel’s request to police that Appellant not be 

interviewed without counsel present, and from Doctor Christine Martone 

regarding Appellant’s metal state at the time of his confession, was 

admissible.

We begin by noting that questions concerning the admissibility of 

evidence lie within the sound discretion of the trial court, and we will not 

reverse the court’s decision on such a question absent a clear abuse of 

discretion. Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa. Super. 

2005). An abuse of discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law, or the exercise of 

judgment that is manifestly unreasonable, or the result of bias, prejudice, illwill or partiality, as shown by the evidence or the record. Commonwealth 

v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001).

Before any evidence is admissible in a criminal proceeding, it must be 

competent and relevant. Commonwealth v. Freidl, 834 A.2d 638, 641 

(Pa. Super. 2003).

Relevance is the threshold for admissibility of evidence. 

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 

(2008). Relevant evidence is “evidence having any tendency to 

make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than 

it would be without the evidence.” Pa.R.E. 401. “Evidence is 
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relevant if it logically tends to establish a material fact in the 

case, tends to make a fact at issue more or less probable or 

supports a reasonable inference or presumption regarding a 

material fact.” Commonwealth v. Drumheller, 570 Pa. 117, 

135, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 

123 S.Ct. 2284, 156 L.Ed.2d 137 (2003). “Evidence that is not 

relevant is not admissible.” Pa.R.E. 402. “Although relevant, 

evidence may be excluded if its probative value is outweighed by 

the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence.” 

Pa.R.E. 403.

Commonwealth v. Williams, 48 A.3d 1265, 1268-1269 (Pa. Super. 2012).

With regard to Appellant’s attempt to have Attorney Joyce testify that 

he had informed police that he wanted to be present for any questioning of 

Appellant, we fail to see how this matter was relevant as it does not tend to 

establish the voluntary nature of Appellant’s statement to police. As we 

previously discussed, at the time Appellant was interviewed by police, he 

was not charged with the instant crimes. Therefore, Appellant’s Sixth 

Amendment right to counsel had not attached. In addition, with regard to 

Appellant’s Fifth Amendment rights, such rights could only be invoked by 

Appellant. As mentioned above, Appellant personally waived his rights by 

signing a Miranda waiver form prior to making his statement to police. 

Consequently, any discussion Attorney Joyce had with police prior to 

Appellant being interviewed was not relevant as to the voluntary nature of 

Appellant’s statements, and Appellant has failed to establish an abuse of 

discretion. Hence, his contrary claim lacks merit.
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In addition, Appellant claims that the trial court erred in failing to 

permit testimony from Dr. Martone concerning the nature of Appellant’s 

mental illness and its effect upon Appellant’s cognitive functions. Appellant 

wanted Dr. Martone to testify regarding the effects of Appellant’s mental 

illness at the time of his statement to police, thereby attacking the voluntary 

nature of Appellant’s statement.

As with all other evidence, the admission of expert testimony is a 

matter of discretion for the trial court and will not be remanded, overruled or 

disturbed unless there was a clear abuse of discretion. Commonwealth v. 

Brewer, 876 A.2d 1029, 1035 (Pa. Super. 2005). Again, a finding of abuse 

of discretion may not be made “merely because an appellate court might 

have reached a different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” Commonwealth v. Laird, 988 A.2d 

618, 636 (Pa. 2010) (quoting Commonwealth v. Sherwood, 982 A.2d 

483, 495 (Pa. 2009)).

Our review of the record reflects that Dr. Martone, as a member of the 

the trial court’s behavior assessment unit, evaluated Appellant on two 

occasions after he gave his statement to police on October 25, 2012. As the 

suppression court states in its findings of fact:

23. [Appellant] was evaluated at the Court’s Behavior 

Assessment Unit and report was issued on October 30, 2012. He 

was deemed incompetent to stand trial because his psychiatric 

symptoms were significant barriers in cooperating with his 
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attorney. [Appellant] did, however, have a factual and rational 

understanding of the charges against him. (Court Exhibit 1 A).

24. [Appellant] was reevaluated by the Behavior Assessment 

Unit on November 12. He was still deemed incompetent on the 

same basis. It was recommended that he be transferred to 

Torrance State Hospital. (Court Exhibit 1 B).

Suppression Court Opinion, 12/29/13, at 9.

Completely lacking from the record, or from Appellant’s argument in 

his appellate brief, is any indication that Appellant was evaluated just prior 

to the time of his statement to police on October 25, 2012. Rather, the 

record establishes that on October 30, 2012, five days after giving his 

statement to police, Appellant was evaluated and deemed incompetent to 

stand trial. Accordingly, we conclude Appellant has failed to establish that 

the trial court committed an abuse of discretion in declining to admit the 

expert testimony at issue.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/2015