J-A27002
-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. MICHAEL RAYMOND BELL Appellant No. 3399 EDA 2018 Appeal from the Judgment of Sentence imposed August 1, 2018 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP
-46
-CR
-0006944
-2017
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J. * MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 22, 2021 Appellant, Michael Raymond Bell, appeals from the judgment of sentence imposed on August 1, 2018 1 in the Court of Common Pleas of Montgomery County, following Appellant’s convictions of first
-degree murder, possession of instruments of crime (“PIC”), and tampering with evidence. 2

_________________ ____________________ _______
* Retired Senior Judge assigned to the Superior Court.
1 Appellant purported to appeal from the November 2, 2018 order denying his post-sentence motion. “In a criminal action, an appeal properly lies from the judgment of sentence made final by the denial of post
-sentence motions.” Commonwealth v. Rivera, 238 A.3d 482, 489 n.1 (Pa. Super. 2020) (quoting Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted)). We have corrected the caption accordingly.
2 18 Pa.C.S.A. §§ 2502(a), 907, and 4910, respectively.J-A27002
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Appellant contends the trial court erred in denying his motion to suppress and in refusing to deliver a requested jury instruction. Following review, we affirm. As the trial court explained: At approximately 8:13 p.m. on Saturday, September 23, 2017, Norristown Police officers responded to a call that there was a dead body inside of Appellant’s apartment at the Riverside Apartment complex on Schuylkill Avenue in Norristown. Upon their arrival, the officers encountered three individuals in the parking lot: Appellant, Appellant’s girlfriend Kaitlin Oberreither, and friend Marquis Allen. Appellant escorted the officers to his apartment, at which time one of the officers took the keys from Appellant to open the door for safety reasons. Upon entry, the officers discovered a black male lying on the floor next to a couch in the living room area with a large amount of blood. After officers gathered preliminary information, all three witnesses agreed to go to the police station to give a statement. After providing three inconsistent statements to detectives, at approximately 12:45 a.m. on September 24, 2017, Appellant confessed to killing the victim, Leroy McCray (“McCray”) with a hammer. Appellant provided detectives with several consents to search and also consented to provide a videotape statement. Starting at approximately 2: 26 a.m. on September 24, 2017, Appellant provided a videotape statement, lasting approximately five (5) minutes depicting his version of how the killing occurred in his apartment. Law enforcement arrested Appellant and charged him with McCray’s murder on September 24, 2017. Trial Court Opinion, 1/14/20, at 2
-3 (citations to notes of testimony, trial exhibits, and criminal complaint omitted). 3

_________________ ____________________ _______ 3 Appellant concedes that “[t]he facts and procedural history preceding this appeal are undisputed and, excepting the trial court’s conclusions drawn from such facts, [are] correctly summarized in the trial court[’]s 1925(b) Opinion.” Appellant’s Brief at 6
.J-A27002
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Appointed counsel filed a motion to suppress statements made and consents given by Appellant, contending that detectives subjected Appellant to a custodial interrogation before reading Appellant his Miranda4 rights. The motion sought suppression of Appellant’s statements, “including but not limited to his video confession, and any consents to search,” as well as evidence gathered as a result of his statements because the evidence constituted “fruit of the poisonous tree.” Motion to Suppress, 3/12/18, at 9
- 10. The trial court conducted a hearing on March 19, 2018 to address all pre-trial motions except motions in limine. With respect to the motion to suppress, on May 3, 2018, the court issued its Findings of Fact and Conclusions of Law as well as an order denying Appellant’s motion. 5 The case proceeded to trial the following day, with voir dire taking place on May 4 and opening statements beginning on May 7. 6 On May 11, 2018, the jury found Appellant guilty of murder, PIC, and tampering with evidence. The trial court directed a presentence investigation and a parole and probation intervention evaluation before sentencing Appellant on August 1,

_________________ ____________________ _______ 4 Miranda v. Arizona, 384 U.S. 436 (1966).
5 The court’s 28
-page Findings of Fact and Conclusions of Law included 76 factual findings and 40 legal conclusions. Findings of Fact and Conclusions of Law, 5/3/18.
6 The trial court disposed of several motions in limine and other pre
-trial matters by orders issued on April 30 and May 2, 2018.J-A27002
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2018, to a mandatory life sentence without parole for murder, a concurrent sentence of two and a half to five years’ incarceration for PIC, and a determination of guilty without further punishment for tampering with
evidence. Appellant filed post
-sentence motions, which were denied on November 2, 2018. This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant asks this Court to consider two issues: I. Whether the court should have suppressed the Appellant’s statements because such statements were not voluntarily provided due to the manipulative police interrogation. II. Whether the trial court erred by failing to instruct the jury on the castle doctrine justification defense. 1. Whether the castle doctrine justification should have been provided because a forceful entry does not require a physical breaking into a person’s residence[.] 2. Whether the castle doctrine justification should have been provided because there was no criminal activity occur[r]ing at the time deadly force was used related to the confrontation. 3. Whether the court’s omission of the castle doctrine justification jury instruction resulted in prejudice to the Appellant because he was not provided with the presumption that deadly force was necessary. Appellant’s Brief at 5. 7

_________________ ____________________ _______ 7 We have reordered Appellant’s issues for ease of disposition.J-A27002
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In his first issue, Appellant argues that evidence obtained as a result of his statements should have been suppressed because of the manipulative interrogation conducted by police before reading him his Miranda rights. As this Court recently reiterated: When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Copenhaver, 238 A.3d 509, 513 (Pa. Super. 2020) (quoting Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (citation omitted)). “Our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing.” Copenhaver, 238 A.3d at 513 (quoting Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (alteration and additional citation omitted)). Further: Where the appeal of the determination of the suppression court turns on allegations of lega l error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review. Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (quoting Commonwealth v. Jones, 121 A.3d 524, 526
-27 (Pa. Super. 2015) (alterations and additional citations omitted)).J-A27002
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The crux of Appellant’s argument is that his pre
-Miranda statements should be suppressed because of manipulative police conduct, and the statements made after he was provided Miranda warnings should be suppressed because they constituted fruit of the poisonous tree. Having reviewed the evidence presented by the prosecution at the suppression hearing, including the testimony of the officers involved, we find the record supports the trial court’s factual findings. We hereby incorporate those findings as if fully set forth herein . Findings of Fact, 5/3/18, at ¶¶ 1
-76. Further, we find that the court properly applied the law to the facts to reach its conclusions of law, specifically in determining that Appellant was not in custody at the time he gave the first three parts of his written statement and in determining that Appellant voluntarily waived his rights before providing the fourth part of the written statement and a videotaped statement. We hereby incorporate the trial court’s conclusions of law herein as if fully set forth. Conclusions of Law, 5/3/18, at ¶¶ 1
-39. Because the trial court properly denied Appellant’s motion to suppress, we shall not disturb its ruling. Appellant’s first issue fails for lack of merit. In his second issue, Appellant asserts trial court error for failure to deliver an instruction regarding the castle doctrine defense. Appellant argues that “the errors of the court result from the court’s conclusion that a physical breaking and entering is required to fulfill the [prerequisite conditionJ-A27002
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warranting a castle doctrine instruction] under 18 Pa.C.S.A § 505(b)(2.1)(i)[.]” Appellant’s Brief at 23. For context, it is helpful to consider Appellant’s statement to Detective Richard, describing the events that occurred when McCray arrived at Appellant’s apartment between 7:00 a.m. and 8 :00 a.m. on the morning of September 23, 2017. The trial court provided a summary of that statement as follows: I was in my bedroom putting on lotion and I heard my door open, so I came out there and [McCray] was standing in my living room, looking goofy. I asked him what he was doing. I was like, you didn’t even call me and tell me that you were going to show up. He was fine at first, but then once I told him that he had to leave, that’s when he got like really belligerent and started cursing and using foul words. He was telling me he was going to kick my ass. I told him to just leave. When I told him that, he got in my face, and I asked him to take a step back. I asked him again and he pushed me, so I pushed him back. That’s when he started swinging on me. I did what I thought was right. There was a hammer sitting right there, and I just grabbed the hammer and I hit him. Something came over me, and I just hit him. * * * Question: How long did it take for him to die? Answer: About five minutes
. Question: After he died, did you move his body? Answer: Yes. I moved him onto the couch. I don’t even know why; I just did. I wanted to make it look like he was asleep or something. * * * Question: How did he just walk into your apartment? Was your door unlocked?J-A27002
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Answer: No. Apparently he must have made a spare key. [8] Trial Court Opinion, 1/14/20, at 16
- 17 (quoting N.T., Trial, 5/7/18, at 246
- 50; Photocopy of Appellant’s Statement, Commonwealth Exhibit C
- 19; and N.T., Trial, 5/8/18, at 23
-26, 30). With respect to our standard of review, in Commonwealth v. Cannavo, 199 A.3d 1282 (Pa. Super. 2018), this Court explained: Our standard of review in regard to a trial court’s decisions on jury instructions is well
-settled: “[O]ur standard of review when considering the denial of jury instructions is one of deference
—an appellate court will reverse a court’s decision only when it abused its discretion or committed an error of law.” Commonwealth v. Galvin, 603 Pa. 625, 651, 985 A.2d 783, 788
-89 (2009) . “[Our] key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations.” Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001). Appellate review of a court’s decision as to whether the castle doctrine is applicable, however, is less clear. Id. at 1286. In Cannavo, the Court explained: The castle doctrine was formalized into statute by our legislature in 2011. Since that time, the trial court and the parties agree there has been sparse case law addressing the applicability of the castle doctrine. Our Supreme Court in 2016, however, provided some clarity on the application of the castle doctrine in Commonwealth v. Childs, 636 Pa. 322, 142 A.3d 823 (2016)
.

_________________ ____________________ _______ 8 In a text message sent by McCray to Appellant at 9:14 p.m. on the night before the murder, McCray stated, “I got a key to open the door down stairs so I let myself in.” Appellant texted back, “Ok.” Exhibit B to Commonwealth Motion in Limine to Admit Text Messages, 4/16/18. That motion was granted as unopposed by order entered on April 30, 2018.J-A27002
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In Childs, although the primary issue was whether the defendant was entitled to a castle
-doctrine instruction when his trial took place after enactment of the castle
-doctrine statute, but the act took place before enactment of the statute, our Supreme Court noted that the Section 505(b)(2.1) presumption did not actually alter the elements of a castle
-doctrine defense. Instead, subsection 2.1 “provides an evidentiary mechanism to aid in the factfinder’s evaluation of the merits of a castle doctrine defense.” Childs, 636 Pa. at 335
-36, 142 A.3d at 831
-32 . Subsection 2.1 consequently creates a presumption that impacts the evidentiary burden of a defendant seeking its protection as well as the factfinder’s analysis of the evidence in order to determine whether the defendant has established a castle doctrine defense. It is a law that provides a method to enforce the right of self defense as embodied by the castle doctrine. In short, it is a procedural statute. Id. at 1287 (quoting Childs, 142 A.2d at 833). The castle doctrine provisions relevant to the instant case are set forth in 18 Pa.C.S.A. § 505 (Use of force in self-protection) as follows: (b) Limitations on justifying necessity for use of force * * * (2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death [or] serious bodily injury . . . if both of the following conditions exist: (i) The person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle[.] (ii) The actor knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.J-A27002
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- (2.2) The presumption set forth in paragraph (2.1) does not apply if: * * * (iii) the actor is engaged in a crimi nal activity or is using the dwelling, residence or occupied vehicle to further a criminal activity[.] * * * 18 Pa.C.S.A. § 505(b)(2.1), (2.2)
. With guidance from the Supreme Court’s discussion of the castle doctrine instruction in Childs, this Court in Cannavo concluded: Viewed in this light, and considering the castle doctrine’s inclusion within the self
-defense statute, it is apparent that the castle doctrine is an evidentiary means by which a defendant may attempt to prove justification by self
-defense. Thus, it is subject to a similar, initial standard by which courts must assess the appropriateness of a self
-defense instruction, namely, that “a valid claim of self
-defense [or the castle doctrine] must be made out as a matter of law, and this determination must be made by the trial judge. Such claim may consist of evidence from whatever source.” Commonwealth v. Mayfield, 401 Pa. Super. 560, 585 A.2d 1069, 1070 (1991) (en banc). In the case sub judice, the trial court was tasked with determining whether Appellant made a valid claim for the castle doctrine as a matter of law. Subsection 2.1 requires both subsections 2.1(i) and 2.1(ii) to be met in order for the castle doctrine to apply. See 18 Pa.C.S. § 505(b)(2.1) (reasonable belief of deadly force is presumed necessary “if both of the following conditions exist” (emphasis added)). Subsection 2.1(i) lists, inter alia, the following requirements: (A) the victim is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, (B) a dwelling, residence, or occupied vehicle. 18 Pa.C.S. § 505(b)(2.1)(i) . Subsection 2.1(ii) then provides that the defendant must have known, or had reason to believe, that the unlawful and forceful entry or act is occurring. Id. at 1287
-88.J-A27002
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Here, the trial court rejected Appellant’s request for the castle doctrine instruction and instead delivered a general self
-protection instruction in accordance with Section 505(a), which provides that “[t]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” 18 Pa.C.S.A. § 505(a). As the trial court observed, Both instructions on justification provide a presumption that a defendant acted reasonably because both instructions explain to the jury that the Commonwealth has the burden to prove beyond a reasonable doubt that the defendant did not act in justifiable self
-defense once the defense is properly raised. While the castle doctrine instruction may state the presumption more clearly, the presumption itself is a matter of law under the applicable statute and [defense counsel] strenuously argued that presumption to the jury in closing. Trial Court Opinion, 1/14/20, at 26
-27 (footnote omitted). Addressing Appellant’s argument that he presented sufficient evidence to warrant a castle doctrine instruction, the trial court explained: [Appellant] argues that the statutory element of forceful entry does not actually mean forceful entry but, rather, that the entry itself can be peaceful and the force or forceful aspect can develop after entry. This court concluded that such a construction is strained and does not comport with the language of the statute. Although the statute itself does not define the term “forceful entry,” Black’s Law Dictionary defines “force” as “power, violence, or pressure directed against a person or thing”; “forced entry” as “the act or an instance of someone’s getting into a building illegally by breaking a door, window, etc.,” and “forcible entry” as “the act of entering land in another’s possession by the use ofJ-A27002
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force against another or by breaking into the premises.” Black’s Law Dictionary 787, 788, 789 (11th ed. 2019). Appellant concedes, as he must, that the evidence does not support a finding that McCray forcefully entered Appellant’s apartment in the early morning of September 23, 2017. Indeed, crediting Appellant’s testimony regarding the events of that morning, as the court must, Appellant presented no evidence to support a finding that McCray unlawfully and forcefully entered Appellant’s apartment. [9] Thus, the evidence did not justify the instruction. Id. at 30
-31 (emphasis in original) (footnote omitted). We agree. The trial court appropriately denied the request for the castle doctrine defense because Appellant failed to satisfy the requirements of Subsection 2.1. We also agree with the trial court’s denial of the castle defense in light of the fact the presumption in Subsection 2.1 does not apply if the actor is involved in criminal activity. Id. at 31 (referring to 18 Pa.C.S.A. § 505(b)(2.2)(iii))). The court noted that testimony from Appellant and Ms. Oberreither, as well as numerous text messages between Appellant and McCray, supported a finding that the confrontation resulted from a dispute over drugs. Id. Appellant acknowledged that he smoked marijuana on essentially a daily basis, that he obtained his marijuana from McCray, and that

_________________ ____________________ _______ 9 At trial, Appellant testified that he unlocked the door to his apartment, intending to take out his trash. However, he had to use the bathroom and did so “for literally just 30 seconds.” N.T., Trial, 5/10/18, at 141. When he came out of the bathroom, McCray was in the doorway. Id. at 142. There was no suggestion that any amount of force was used by McCray to enter the apartment after Appellant unlocked the door.J-A27002
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he owed money to McCray at times for marijuana. N.T., Trial, 5/10/18, at 123
-29. He drank beer and smoked marijuana with McCray in Appellant’s apartment on the night of September 22, 2017. McCray left Appellant’s apartment at approximately 2:30 a.m. on September 23, 2017. Id. at 131, 136
-37. Appellant texted McCray four hours later, at 6:29 a.m., hoping to get more marijuana on credit from McCray to smoke before going to work. Id. at 139. Appellant was getting ready for work when he heard someone (McCray) in his apartment. Id. at 140
-41. “The evidence showed that the confrontation was the result of a dispute over drugs. Accordingly the court properly concluded that the acts also did not support the castle doctrine charge because Appellant was engaged in a criminal activity or was using his apartment to further a criminal activity.” Trial Court Opinion, 1/14/20, at 31
-32. Therefore, whether based on the failure to prove a forceful entry, or in light of the criminal activity taking place, the trial court did not err in denying the castle doctrine instruction. Although the evidence did not warrant a Section 505(b) castle doctrine instruction, the trial court did appropriately deliver a self
-defense instruction in accordance with Section 505(a). N.T., 5/11/18, at 154
-58. Appellant was not prejudiced by the denial of an instruction unsupported by the evidence; he properly received an instruction that comported with the evidence presented. Finding neither abuse of discretion nor error of law in the trialJ-A27002
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court’s denial of a castle doctrine instruction, we shall not disturb that ruling. Appellant’s jury instruction issue fails. Appellant is not entitled to relief on either of his issues. Therefore, we shall affirm Appellant’s judgment of sentence. In the event of further proceedings relating to Appellant’s suppression motion, the parties shall attach a copy of the trial court’s May 3, 2018 Findings of Fact and Conclusions of Law. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/21Circulated 01/27/2021 02:48 PM FINDINGS OF FACTS IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : NO. 

### 6944-2017

v. MICHAEL R. BELL

FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO RULE 581(1) OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE FINDINGS OF FACT

1. The 

### undersigned presided over 

### a 

### suppression hearing on Monday, March 19, 

### 2018, on 

### Defendant's March 12, 

### 2018 Motion to 

### Suppress 

### Statements Made 

### and Consents Given by 

### Defendant. 2. Officer 

### Jason Hoover 

### testified 

### that he is 

### currently a patrol officer for 

### the municipality of 

### Norristown 

### and has held 

### that position for 

### a little less 

### than eight (8) 

### years. 3. 

### Sergeant Nicholas 

### Dumas testified 

### that he is 

### currently employed with 

### the municipality of 

### Norristown 

### as a 

### patrol sergeant and 

### has been with 

### the Norristown Police 

### Department for twelve (12) 

### years. Prior to 

### that, Sergeant 

### Dumas worked 

### as a police officer for Tullytown Borough in 

### Bucks County 

### and for 

### the New York City Police 

### Department for 

### a combined period of four (4) 

### years.4. Detective Todd 

### Richard testified 

### that he 

### works for 

### the Montgomery County Detective 

### Bureau and is 

### currently assigned to 

### the Homicide Unit, where he 

### has worked for 

### just under seven (7) 

### years. Before 

### that, Detective 

### Richard worked for the 

### Pottstown Police 

### Department for 

### eighteen (18) years, where 

### he 

### obtained the 

### rank of Detective Corporal. 5. At 

### approximately 8:13 p.m. on 

### Saturday, September 23, 2017, Officer Hoover 

### responded to a radio 

### dispatch as 

### a result of 

### someone calling the police to 

### report 

### that he 

### discovered 

### a body 

### inside of 

### his 

### apartment. 6. Officer Hoover 

### responded to Riverside 

### Apartments 

### at 104 Schuylkill Avenue in Norristown 

### dressed in full 

### uniform with 

### a side arm. 7. 

### Commonwealth Exhibit CS -1 is a copy of 

### the Norristown Police 

### Incident Report from 

### September 23, 

### 2017, prepared by Officer Hoover, 

### marked, identified 

### and admitted over 

### Defendant's objection.' 8. After 

### arriving 

### at the Riverside 

### Apartments complex, Officer Hoover along with 

### other officers, 

### encountered Michael Bell ("Defendant") 

### and two 

### other individuals, Kaitlin 

### Oberreither 

### and Marquis Allen, in a 

### parking lot 

### at the end of "E" 

### building. 9. 

### Defendant initially told Officer Hoover 

### that there was "a 

### dead guy in 

### his 

### apartment".

' Counsel objected on the basis that the Commonwealth did not need to refresh the officer's recollection. The undersigned overruled the objection.
210. Officer Hoover 

### described Defendant's demeanor 

### and appearance as calm, collected, sober 

### and had his wits 

### about him. 

### Defendant did 

### not appear to be 

### under any type of 

### duress. 11. 

### Defendant agreed to 

### take the officers 

### back to 

### his 

### apartment and led Officer Hoover, 

### Corporal Gergel, Officer 

### Graham and Officer Robinson to 

### apartment EC9 on 

### the 

### third floor. Once on 

### the 

### third floor, 

### there were 

### approximately four (4) or five (5) 

### stairs leading 

### up to 

### the door of 

### Defendant's 

### apartment. 12. Corporal Gergel 

### opened 

### the door to 

### Defendant's 

### apartment using the keys provided by 

### Defendant 

### and the officers 

### entered the 

### apartment. 13. 

### Immediately visible 

### upon entry, Officer Hoover saw a 

### black male lying 

### on or 

### beside 

### a couch, not moving, 

### and blood 

### splattered everywhere. 14. Officer Hoover 

### participated in 

### clearing 

### the 

### apartment to 

### ensure 

### that there were no 

### attackers inside or 

### that there was no one else inside needing 

### assistance. After 

### clearing the 

### apartment, the officers moved 

### back out into the 

### hallway to 

### make calls for police 

### resources including 

### requests for detectives, 

### supervisors 

### and the 

### duty officer. 15. Officer Hoover 

### approached Defendant to 

### obtain Defendant's biographical information for 

### his 

### report. Defendant and Officer Hoover stood 

### at the base of 

### the 

### stairs leading to 

### Defendant's 

### apartment within 

### earshot of the officer's 

### supervisors who were 

### talking at the door of

### the 

### apartment. 16. 

### During Officer Hoover's 

### conversation with Defendant in 

### the hallway, 

### Defendant spoke in a 

### conversational tone; he 

### appeared to be awake

3

### and alert, 

### as well as calm 

### and collected. He did 

### not 

### appear to be 

### under the 

### influence of 

### any 

### drugs or alcohol. 17. While 

### Defendant 

### sat on the 

### stairs, Officer Hoover 

### obtained his 

### biographical information, 

### including full 

### name, 

### address, phone number, and 

### then on to 

### Defendant's general timeline for 

### the day. Officer Hoover 

### asked Defendant the name of the 

### deceased male, 

### whether he knew him, 

### and when 

### Defendant was 

### last in his 

### apartment. 18. 

### Defendant replied 

### that the decedent was Leroy, with no 

### known last name, 

### and 

### that he was 

### an occasional friend. Leroy 

### arrived 

### at Defendant's 

### apartment around 7:30 a.m. 

### and Defendant 

### stated 

### that he left 

### his 

### apartment at 8:30 a.m. 

### and Leroy 

### remained 

### at Defendant's 

### apartment. 19. 

### Defendant told Officer Hoover 

### that after he left 

### the 

### apartment he 

### began walking 

### north on DeKalb 

### Street towards the Norristown 

### Transportation Center. As he 

### passed the Norristown 

### Transportation Center, Defendant said a
woman 

### approached him to 

### ask for a cigarette. 20. According to 

### Defendant, he 

### went with 

### the woman to 

### her house in 

### Cherry Hill, New 

### Jersey, until his 

### return to Norristown 

### at approximately 3:30 p.m. 

### that day. After 

### returning to 

### Norristown, 

### Defendant met up with his girlfriend, Kaitlin 

### Oberreither, along Main 

### Street and they went to a 

### house party on or 

### near the 500 block of 

### Cherry 

### Street in Norristown. 21. 

### Defendant told Officer Hoover 

### that he, 

### his girlfriend 

### and Marquis Allen left 

### the party 

### around 8:05 p.m. 

### and returned to 

### Defendant's 

### apartment, where 

### they discovered Leroy's 

### body inside. After seeing Leroy's body, 

### the three

4of 

### them backed out of 

### the 

### apartment and Defendant 

### stated that he did not believe 

### any of 

### them 

### had touched or 

### handled anything in 

### doing so. 22. 

### Defendant 

### stated to Officer Hoover 

### that his 

### air conditioning unit

was 

### turned off 

### and his door locked 

### when he left 

### that morning. Defendant told Officer Hoover 

### that Leroy 

### was 

### homeless, going "from 

### couch to couch" staying with 

### friends 

### and 

### that it 

### was 

### not 

### unusual for Leroy to be 

### at Defendant's 

### apartment. 23. 

### During Officer Hoover's 

### gathering of 

### this information, the tone was 

### conversational, no one 

### raised their voice, 

### none of 

### the officers 

### brandished a firearm in 

### Defendant's presence, no one 

### threatened or 

### restrained Defendant in any way 

### and Defendant never 

### appeared reluctant to 

### speak with him. 24. Officer Hoover 

### explained 

### that Defendant was 

### not a 

### suspect 

### at that time 

### and 

### that he did 

### not advise 

### Defendant of 

### his 

### rights 

### under Miranda.2 

### Defendant remained awake 

### and alert and appeared to know 

### what he was doing


### as he spoke with Officer Hoover. 25. Officer Hoover 

### testified 

### that it 

### was 

### standard protocol to 

### ask
someone who 

### has discovered a 

### dead body 

### inside of 

### their home to provide a 

### written 

### statement. When 

### asked if he was willing to go to 

### the police 

### station to give a 

### statement, Defendant replied in the affirmative. Officer Hoover led 

### the way 

### back to 

### the 

### parking lot 

### and to 

### his patrol vehicle. 26. After Officer Hoover 

### checked Defendant to 

### make sure he did not have 

### any weapons on 

### his person 

### pursuant to the 

### standard protocol, he 

### had

2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

5

### Defendant sit in 

### the back of 

### the 

### car 

### and the officer got 

### into 

### the driver's 

### seat and drove to 

### the police 

### station. Officer Hoover did 

### not leave 

### Defendant sitting in the 

### patrol vehicle 

### and he 

### was 

### not 

### restrained except 

### perhaps with 

### a seatbelt 

### that Defendant would have 

### chosen to 

### fasten. 27. 

### Because 

### Defendant was 

### not in 

### custody 

### and entering the police 

### department voluntarily, Officer Hoover did 

### not take him into the building 

### through the enclosed sally 

### port, which would have 

### been the case if 

### Defendant
was 

### a prisoner. Instead, Officer Hoover 

### pulled up to 

### the patrol door on the 

### outside of 

### the building 

### and opened the 

### backseat door for 

### Defendant to exit the 

### secured vehicle. 28. Officer Hoover 

### walked 

### Defendant into the 

### building and 

### around the


### corner to 

### the roll call room. 

### Defendant joined Kaitlin 

### Oberreither and Marquis Allen who were 

### already there. Officer Hoover 

### asked the 

### three of 

### them to keep 

### their conversation to 

### small 

### talk 

### and not to 

### discuss the incident. Officer Hoover 

### explained 

### that this procedure is 

### standard protocol 

### in 

### an 

### attempt to keep 

### witnesses from 

### discussing an event, which may color 

### their own recollection of 

### what they saw or 

### heard or did 

### not see or 

### hear. 29. None of 

### the 

### three witnesses were physically 

### restrained or 

### detained. All were provided with 

### water 

### and Officer Hoover walked 

### Defendant out to 

### use the 

### restroom. Additionally, 

### the door from 

### the roll call room 

### out into a hallway
was left open. Officer Hoover 

### testified 

### that he would have walked 

### Defendant 

### out of 

### the building 

### and allowed 

### him to leave if 

### Defendant 

### had expressed a

6

### desire to do so 

### because they 

### had Defendant's contact information and he was free to leave. 30. Officer Hoover 

### described Defendant as calm, 

### almost 

### tranquil, and cooperative. The 

### tone was 

### conversational and with no 

### emotion. 31. 

### Sergeant Dumas also 

### responded to 

### Defendant's 

### apartment at Riverside 

### Apartments on 

### September 23, 

### 2017. At 

### approximately 9:52 p.m., 

### Sergeant Dumas 

### returned to 

### the Norristown Police 

### Department and met with 

### Defendant in 

### the roll call room to 

### request Defendant's consent to 

### search his 

### apartment for scene 

### processing. 32. 

### Commonwealth 

### Exhibit CS-2 is a copy of 

### the Montgomery County 

### Consent to 

### Search form 

### that Defendant signed on 

### September 23, 

### 2017, to 

### search his apartment, marked, identified 

### and admitted without objection. 33. 

### Sergeant 

### Dumas testified 

### that he filled 

### out the form in 

### front of 

### Defendant after 

### Defendant 

### had given 

### his 

### consent and then Defendant signed 

### the form. No one 

### threatened Defendant or 

### promised him 

### anything in 

### return for 

### his 

### consent. 34. 

### Sergeant 

### Dumas believed 

### that Officer Hoover 

### and a female 

### witness

were 

### in 

### the roll call room 

### at the time. 

### Sergeant Dumas obtained Defendant's 

### consent prior to 

### Defendant's interview. 

### Sergeant 

### Dumas was wearing his 

### detective uniform 

### consisting of a polo 

### shirt and khakis. 35. 

### Sergeant 

### Dumas described the tone 

### as conversational, no one 

### raised their voice 

### and Defendant never 

### indicated 

### that he did 

### not want anyone to 

### search his 

### apartment. Sergeant Dumas knew of no 

### reason to 

### think 

### that

7

### Defendant did 

### not 

### understand what was 

### happening when 

### the Sergeant 

### requested Defendant's 

### permission for 

### the search. 36. 

### Sergeant Dumas agreed with 

### Counsel 

### that law 

### enforcement's 

### purpose for 

### searching Defendant's 

### apartment was to 

### obtain evidence to be 

### used in 

### prosecution of 

### the homicide. 37. Detective 

### Richard received a 

### request to 

### respond to 

### the Norristown Police 

### Department at approximately 9:03 p.m. on 

### September 23, 

### 2017, to 

### assist with a homicide 

### investigation. 38. 

### Commonwealth 

### Exhibit CS-3 is a copy of 

### the Montgomery County 

### Detectives Homicide 

### Supplemental Report 

### prepared by Detective 

### Richard based

on 

### his 

### response to 

### the Norristown Police 

### Department, marked, identified and 

### admitted without objection. 39. Detective 

### Richard testified 

### that he 

### arrived 

### at the Norristown Police 

### Department 

### at approximately 9:45 p.m. 

### whereupon he was quickly briefed 

### and 

### assigned with Norristown Detective 

### Stephen Sowell to 

### interview Defendant. 40. At 

### approximately 9:50 p.m. Detective 

### Richard 

### and Detective Sowell 

### went to 

### the roll call room 

### and found Defendant seated with the other witnesses. Detective 

### Richard 

### introduced himself to 

### Defendant, shook 

### hands, and told 

### Defendant 

### that he was 

### there to 

### speak with him. 

### Defendant responded "ok" 

### and the two 

### detectives walked with 

### Defendant to 

### the detective office 

### area of 

### the police 

### station to 

### interview 

### Defendant. Defendant was not in 

### shackles or 

### handcuffs, nor was he 

### physically led to 

### the open detective 

### area.

841. The open detective office 

### space 

### contains five (5) 

### cubicles. The door into 

### this area remained open 

### during the interview 

### and other officers may have 

### entered and exited while 

### the 

### three (3) 

### men were in 

### the area but no one else 

### stayed. Detective 

### Richard testified 

### that he 

### sat behind a 

### computer at one desk, 

### Defendant 

### sat in a 

### chair next to 

### him, 

### and Detective Sowell 

### sat behind his own 

### desk facing Detective 

### Richard 

### and Defendant. 42. Detective 

### Richard was not aware of 

### any other 

### statements Defendant had given 

### up to 

### that time. While 

### the detectives walked with 

### Defendant to 

### the open office 

### area, they made small talk. Detective Richard 

### regarded Defendant as a 

### witness who 

### could provide law 

### enforcement with 

### information so 

### that they could begin to 

### investigate 

### the homicide. Detective 

### Richard testified 

### that he 

### wanted as 

### much information 

### as he could 

### obtain to 

### investigate the murder. 43. Detective 

### Richard testified 

### that Defendant's demeanor was 

### completely cooperative, 

### talkative 

### and casual Defendant 

### appeared to be awake 

### and alert and not 

### under the influence of 

### drugs or alcohol. 44. Detective 

### Richard was 

### dressed in a polo-type 

### shirt and 

### tan khaki 

### pants, while Detective Sowell 

### was wearing 

### shorts and a 

### t-shirt. Neither 

### detective 

### had a 

### weapon on 

### them during the interview. 45. Detective 

### Richard explained to 

### Defendant 

### that he would type a 

### question, read it to 

### Defendant word-for-word 

### and then type 

### Defendant's answer word-for-word. When 

### the interview 

### was finished, Detective 

### Richard would 

### print out the statement and Defendant would have 

### an opportunity to review it 

### and

9

### make any corrections, 

### additions, deletions or 

### whatever to 

### his 

### statement. Detective 

### Richard did 

### the typing 

### and asked the questions of 

### Defendant. 46. 

### Commonwealth Exhibit CS -4 is 

### a copy of all of 

### the statements Detective 

### Richard took from 

### Defendant, marked, identified 

### and admitted 

### without objection. 47. The 

### first 

### portion of 

### the interview 

### began 

### at approximately 10:04 p.m. 

### and consisted of six (6) 

### pages of 

### questions and answers, which begin as follows: Q: Michael, I am Detective 

### Richard of 

### the Montgomery County Detective 

### Bureau and present with me is Detective Sowell from the Norristown Police 

### Department. We would like to 

### speak with you 

### about the 

### death of Leroy McCray, Is 

### this okay? A: Yes Q: Can you 

### read 

### and write 

### English? A: Yes Q: Are 

### you 

### currently under the influence of 

### drugs or alcohol? A: No Q: Are you 

### providing 

### this statement to me 

### voluntarily? A: Yes (Investigative Interview Record of Michael Raymond Bell, 

### 9/23/17 at 1, 

### Commonwealth Exhibit CS -4). 48. The 

### last questions and answers in 

### the first portion of the 

### statement were 

### as follows: Q: Is 

### everything you told me in 

### this statement truthful? A: Yes Q: Will you now review 

### this 

### statement and make 

### sure it's 

### accurate? A: Yes Q: How were you 

### treated by 

### the police 

### today? 10A: Good. (Investigative Interview Record of Michael 

### Raymond Bell, 

### 9/23/17 at 6, 

### Commonwealth Exhibit CS-4). 49. The 

### first 

### portion of 

### the interview 

### ended 

### at 10:57 p.m., 

### at which time Detective 

### Richard 

### printed out the 

### statement consisting of 

### pages 1 

### through 6 

### and gave it to 

### Defendant to review, 

### make any 

### changes and sign. 

### Defendant signed 

### at the 

### bottom of 

### each page 

### without making any 

### changes. 50. Detective 

### Richard gave 

### Defendant a 

### break while Detective Richard 

### went to 

### discuss the 

### statement with 

### Lieutenant Bradbury, who 

### was 

### the on-call 

### Lieutenant in 

### charge 

### that night. Defendant went to 

### use the 

### restroom and take

a 

### break, returning with Detective Sowell to 

### the open detective 

### area when Detective 

### Richard 

### returned. 51. At 

### approximately 11:22 p.m. Detective 

### Richard asked Defendant if it 

### would be 

### okay to 

### reopen his 

### statement and ask a few more 

### questions. Defendant replied 

### that would be okay. Detective 

### Richard 

### asked 

### about Defendant's cell 

### phone 

### and a few follow 

### up questions 

### about where 

### Defendant 

### had been earlier in the day. 52. The 

### second portion of 

### the interview 

### ended at 11:48 p.m. 

### and 

### consisted of 

### pages 7 

### through 9 in 

### the typewritten 

### statement, which were given to 

### Defendant to review, 

### make any changes 

### and sign 

### at the bottom of 

### each page. 53. Detective 

### Richard gave 

### Defendant 

### another break and went to 

### speak with 

### Lieutenant Bradbury, who 

### was coordinating 

### the incoming information.

11

### Defendant stayed in 

### the detective work 

### area with Detective Sowell 

### during this 

### break.54. When Detective 

### Richard 

### returned, he 

### asked Defendant if they 

### could reopen his 

### statement and ask a few more 

### questions. Defendant agreed. The 

### third portion of 

### the 

### statement started at 12:13 a.m. of 

### September 24, 

### 2018, 

### and concluded 

### at 12:20 a.m. 

### Defendant reviewed 

### and signed 

### the single 

### page ten after 

### making a 

### change in 

### the middle of 

### the page. 55. Detective 

### Richard gave 

### Defendant 

### another break while Detective 

### Richard went to 

### speak with 

### Lieutenant Bradbury to 

### let 

### Lieutenant Bradbury know 

### that the detectives were going to find 

### an office in 

### the Norristown Police 

### Department to 

### continue the interview. Detective 

### Richard testified 

### that it 

### had become 

### apparent to 

### him from 

### what Defendant was saying 

### and from 

### what 

### Lieutenant Bradbury was telling him, 

### that Defendant 

### had not been 

### truthful in
some of 

### his prior 

### statements. 56. Detective 

### Richard 

### returned to 

### the open detective work 

### area and explained to 

### Defendant 

### that they would be moving into 

### an office. While Detective 

### Richard was 

### locating 

### an office, 

### Defendant was provided a 

### drink and food. Detective 

### Richard, Detective Sowell 

### and Defendant 

### then moved down the 

### hallway into a 

### lieutenant's office, 

### which 

### had a 

### desk and a couple of 

### chairs. 57. Detective 

### Richard read 

### and explained 

### Defendant's constitutional rights from a form 

### that Defendant signed, 

### dated 

### and answered two (2) 

### questions indicating 

### that he 

### understood his Miranda or 

### constitutional rights. Commonwealth Exhibit CS-5 is a copy of 

### the Miranda warnings form 

### that

12Detective 

### Richard 

### read verbatim to 

### Defendant, with 

### Defendant's answers hand written in 

### response to two (2) 

### questions, marked, identified 

### and admitted 

### without objection. 58. Detective 

### Richard described Defendant's demeanor 

### during this time 

### as unchanged, conversational, 

### there was small talk, 

### and there was joking 

### at some 

### points. Defendant gave no 

### indication 

### that he did 

### not 

### understand his 

### constitutional rights, 

### that he did 

### not want to 

### answer any more 

### questions or 

### that he 

### wanted 

### a lawyer 

### present. 59. After 

### Defendant signed the 

### constitutional rights form, Detective 

### Richard confronted him with the information 

### that Detective 

### Richard did not believe 

### the previous 

### statements 

### that Defendant gave 

### and the 

### reasons why. The 

### tone 

### remained conversational. No voices were 

### raised. No one 

### threatened Defendant and he 

### was 

### not restrained in 

### any way. 

### Defendant 

### paused for 

### perhaps ten (10) 

### seconds and 

### then replied 

### that he 

### had killed Mr. McCray with a 

### hammer. 60. 

### Defendant still 

### appeared awake 

### and alert. 

### Defendant gave the 

### detectives no 

### reason to believe 

### that he did 

### not 

### understand what was 

### happening. Defendant did 

### not indicate 

### that he did 

### not want to 

### talk to the 

### detectives any more 

### and Defendant did 

### not 

### ask for a lawyer. 61. Detective 

### Richard 

### asked Defendant if 

### they could 

### resume the interview 

### and Defendant replied 

### that they could. The final 

### portion of the 

### interview 

### began 

### at 12:45 

### a.m. on 

### September 24, 

### 2017, 

### as follows: Q: Michael, 

### the time is now 12:45 AM 

### and it's 

### past midnight so the 

### date is 

### 9/24/2017. Detective Sowell 

### and I have 

### been 

### speaking
13with you 

### and several 

### minutes ago I 

### stopped 

### our conversation and 

### explained to 

### you your 

### constitutional rights. Is 

### that correct? A: Yes Q: Did 

### you 

### understand these rights? A: Yes Q: Did you sign 

### a form 

### agreeing to waive 

### these rights? A: Yes Q: With 

### these rights in 

### mind are you willing to 

### speak with 

### us further? A: Yes Q: Have 

### you been provided with food 

### and breaks? A: Yes Q: Michael did you lie to 

### us in 

### your original 

### statements? A: Yes Q: Why did 

### you lie? A: 

### Because I 

### was scared Q: What exactly did you lie 

### about? A: 

### That I 

### met a girl 

### and went to New 

### Jersey and 

### that Terry 

### had 

### arranged for Leroy to come 

### there Q: Did you kill Leroy McCray? A: Yes I did Q: How did 

### you kill him? A: I 

### used a 

### hammer (Investigative Interview Record of Michael 

### Raymond Bell, 

### 9/24/17 at 11, 

### Commonwealth Exhibit CS-4). 62. Detective 

### Richard testified 

### that once Defendant told him 

### that he killed Mr. McCray with 

### a hammer, Defendant was no longer free to leave. Up to 

### that point, Defendant was free to leave 

### the police 

### station.

1463. 

### During the final 

### portion of 

### Defendant's 

### statement, Detective 

### Richard 

### sought Defendant's 

### consent for 

### additional searches to which 

### Defendant agreed. 64. 

### Commonwealth Exhibit CS-6 is a copy of 

### the Montgomery County 

### Consent to 

### Search form 

### that Detective 

### Richard filled 

### out for 

### Defendant's 

### consent to 

### search his Galaxy Note 5 

### cellular phone, marked, identified and 

### admitted without objection. 65. 

### Commonwealth Exhibit CS-7 is a copy of 

### the Montgomery County 

### Consent to 

### Search form 

### that Detective 

### Richard filled 

### out for 

### Defendant's 

### consent for Detective 

### Richard to 

### obtain a 

### buccal swab or DNA 

### sample from 

### Defendant, marked, identified 

### and admitted without objection. 66. 

### Commonwealth Exhibit CS-8 is a copy of 

### the Montgomery County 

### Consent to 

### Search form 

### that Detective 

### Richard filled 

### out to 

### obtain Defendant's 

### consent for 

### detectives to 

### take 

### photographs of 

### Defendant's body, 

### marked, identified 

### and admitted without objection. 67. 

### Commonwealth Exhibit CS-9 is 

### a copy of 

### the Montgomery 

### County 

### District Attorney's Office 

### Consent to Videotape 

### Statement form 

### that Detective 

### Richard filled 

### out to 

### obtain Defendant's consent to provide a 

### videotape of 

### Defendant's statement, marked, identified 

### and admitted without objection. 68. Detective 

### Richard read 

### and explained each form to 

### Defendant and after obtaining Defendant's consent, filled 

### out the top 

### part and requested 

### that Defendant sign 

### each form 

### and 

### put the date 

### and time on 

### each one. Detective 

### Richard also signed 

### each form.

1569. The final 

### portion of 

### Defendant's 

### statement concluded 

### at 1:54 a.m. 

### at which time 

### Defendant Richard 

### printed out pages 11 

### through 16 

### and asked 

### Defendant to review 

### the pages, make any changes 

### and sign 

### each one. 

### Defendant did 

### not make any changes to 

### the final 

### portion of 

### his written 

### statement. Defendant signed 

### and 

### put the date at the bottom of 

### each page. 

### Defendant told Detective 

### Richard 

### that he 

### had been 

### treated "great" by 

### the police 

### that day. (Investigative Interview Record of Michael 

### Raymond Bell, 

### 9/24/17 at 16, 

### Commonwealth 

### Exhibit CS -4). 70. When 

### the written 

### statement had concluded, Detective 

### Richard took 

### photographs of 

### Defendant's face, 

### arms 

### and hands. In 

### addition, Detective 

### Richard collected a 

### buccal swab from 

### the inside of 

### Defendant's cheek. 71. Detective 

### Richard informed Defendant before he gave the 

### videotaped 

### statement 

### that Defendant was no longer free to leave. 72. 

### Because they needed more 

### space for the 

### camera, Detective 

### Richard, Detective Sowell 

### and Defendant moved 

### back into the roll call room to 

### take Defendant's videotaped 

### statement. The 

### videotaped 

### statement began at 2:26 a.m. 

### and concluded 

### at 2:31 a.m. 73. 

### Commonwealth Exhibit CS-10 is a copy of 

### Defendant's Videotape 

### Statement on a CD, 

### marked, identified 

### and admitted without objection. The 

### Commonwealth 

### requested to 

### publish the video 

### and 

### without objection. Exhibit CS-10 was viewed in 

### open court. 74. Detective 

### Richard explained 

### that on 

### the video, Detective Sowell was 

### seated to 

### his right, Detective. Henry was playing the 

### part of Mr. McCray as

16

### Defendant 

### recounted the 

### incident and 

### Lieutenant Bradbury was working the


### camera directly 

### across from Detective 

### Richard. Detective Henry 

### and Lieutenant 

### Bradbury were 

### dressed similarly to Detective 

### Richard in a polo 

### shirt and 

### khakis. None of 

### the law 

### enforcement officers were 

### carrying weapons. 75. Detective 

### Richard testified 

### that the video 

### was the best 

### demonstration of 

### Defendant's demeanor 

### throughout that night. No one raised 

### their voice, 

### none of 

### the detectives 

### brandished a 

### firearm or 

### threatened Defendant in any 

### manner. Throughout the 

### encounter with 

### Defendant, he was 

### not 

### restrained in any way 

### until after the video was completed 

### and he was 

### put in a cell. 76. Detective 

### Richard testified 

### that at no time did 

### Defendant appear 

### reluctant to 

### speak with him. At no time did 

### Defendant indicate 

### that he did not 

### want to 

### speak with 

### the detectives. 

### Defendant did 

### not ask for a lawyer 

### at any time. 

### Defendant 

### appeared awake 

### and alert. At no time did 

### Defendant indicate 

### that he did 

### not 

### understand what he 

### was doing or 

### what he was being 

### asked.

CONCLUSIONS OF LAW
1. When a 

### defendant files a motion to 

### suppress, the 

### burden is on the Commonwealth to 

### demonstrate by 

### a preponderance of the evidence 

### that the 

### challenged evidence was properly 

### obtained. Pa.R.Crim.P. 581; Commonwealth

v. Galendez, 27 A.3d 1042, 1046 

### (Pa.Super. 2011) (en bane). 2. As it 

### relates to 

### this case, the Commonwealth 

### bears the 

### burden of 

### proving by a 

### preponderance of 

### the evidence 

### that a defendant's statement or

17confession is 

### voluntary. Commonwealth v. Harrell, 65 A.3d 

### 420, 434 (Pa.Super. 2013) (citing Commonwealth v. Nester, 551 Pa. 157, 162-63, 709 A.2d 879, 882 (1998). 3. When 

### ruling on a 

### suppression motion, the 

### suppression court is 

### required to 

### make findings of fact 

### and conclusions of law 

### as to 

### whether evidence
was 

### obtained in violation of 

### a defendant's constitutional rights and must determine 

### whether the Commonwealth 

### has established by 

### a preponderance of the evidence 

### that the challenged evidence is 

### admissible. Pa.R.Crim.P. 581; Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980). 4. "[I]t is 

### within the 

### suppression court's sole province 

### as fact finder to 

### pass on the credibility of 

### witnesses and the weight to be given 

### their testimony." Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa.Super. 2011); accord Commonwealth v. Simmen, 58 A.3d 811, 

### 817 (Pa.Super. 2012). 5. Long

### -settled Pennsylvania law provides 

### that there 

### must be both 

### custody 

### and interrogation in 

### order to 

### trigger the 

### safeguards of 

### Miranda v. Arizona, 384 U.S. 

### 436, 471-79, 86 S.Ct. 1602, 16 

### L.Ed.2d 694 (1966). Commonwealth v. 

### Housman, 604 Pa. 

### 596, 625, 986 A.2d 

### 822, 839 (2009); Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.Super. 2013). 6. "In 

### deeming an 

### interaction to be 

### a custodial interrogation, 'the police officer's 

### subjective 

### intent does 

### not govern the 

### determination 

### but rather the 

### reasonable belief of 

### the individual being 

### interrogated.' " Cruz, 

### supra. 7. The 

### mere fact 

### that a police 

### investigation 

### has focused on 

### a specific 

### person does 

### not automatically trigger 

### 'custody' 

### thus mandating Miranda

18

### warnings for 

### that person's 

### statements to be deemed 

### voluntary. Commonwealth

v. Levanduski, 907 A.2d 3, 24 

### (Pa.Super. 2006) (en banc). 8. The Cruz 

### Court reiterated: An 

### individual is 

### deemed to be in 

### custody for 

### Miranda 

### purposes when he "is 

### physically denied

... 

### his freedom of 

### action 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 

### the interrogation." The 

### court 

### must consider the totality of 

### circumstances, including factors 

### such as "the 

### basis for 

### the detention; the 

### duration; the location; whether 

### the 

### suspect was 

### transferred 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." Id. 

### at 1004 

### (citations omitted); accord Baker, 

### supra at 1019-20. See also Commonwealth v. Templin, 568 Pa. 306, 317-18, 795 A.2d 959, 966 (2002) (citing 

### factors to 

### consider including "the 

### duration and means of the 

### interrogation; 

### the physical 

### and psychological state of 

### the accused; the 

### conditions 

### attendant to 

### the detention; 

### the 

### attitude of 

### the interrogator; and any 

### and all 

### other factors 

### that could 

### drain a 

### person's ability to 

### withstand suggestion 

### and coercion."). 9. The 

### Baker Court explained the 

### standard and the 

### test in 

### general 

### as follows: The 

### standard for 

### determining whether an encounter with 

### the police is 

### deemed "custodial" or police have 

### initiated 

### a custodial interrogation is 

### an objective one 

### based on a 

### totality of 

### the 

### circumstances, with 

### due 

### consideration given to 

### the 

### reasonable impression conveyed to 

### the person interrogated. Custodial interrogation 

### has been defined 

### as "questioning 

### initiated by law 

### enforcement officers 

### after 

### a person 

### has been 

### taken into 

### custody or 

### otherwise deprived of 

### his [or her] freedom of 

### action in any 

### significant way." 

### "Interrogation" is police 

### conduct "calculated to, 

### expected to, or likely to evoke 

### admission." When a 

### person's inculpatory 

### statement is 

### not made in 

### response to 

### custodial 19

### interrogation, the 

### statement is 

### classified 

### as gratuitous, and is 

### not subject to 

### suppression for 

### lack of

### warnings.

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.
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 fact 

### that a police 

### investigation 

### has focused on a 

### particular individual does 

### not automatically trigger "custody," 

### thus requiring Miranda warnings. Id. 

### (citations omitted); accord 

### Commonwealth v. 

### Johnson, 615 Pa. 354, 374, 42 A.3d 1017, 1028 (2012). 10. 

### Interrogation is defined 

### as questioning initiated by law enforcement

or "police 

### conduct calculated to, 

### expected to, or likely to evoke 

### admission" or an 

### incriminating response. Commonwealth v. Umstead, 

### 916 A.2d 1146, 1149, 1152 

### (Pa.Super. 2007) (citations omitted). 11. However, "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." Id. 

### at 1150 (citation omitted).

2012. Moreover, 

### asking for 

### biographical information or general 

### background questions does 

### not 

### constitute interrogation within the meaning of Miranda. Cruz, 

### supra 

### at 1004; Umstead, 

### supra at 1150. 13. In Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, cert. denied 

### sub nom. Lyons v. 

### Pennsylvania, 134 S.Ct. 1792, 188 

### L.Ed.2d 761 (2014), the 

### Pennsylvania Supreme Court explained: As a 

### general rule, 

### because of 

### the inherently coercive 

### nature of police 

### custodial interrogation, 

### statements elicited from 

### an accused in 

### that environment are inadmissible 

### unless the 

### accused was informed of 

### and, inter alia, 

### voluntarily waived 

### his privilege 

### against self-incrimination 

### and the right to 

### counsel. Miranda v. Arizona, 384 U.S. 436, 

### 471-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. 

### DeJesus, 567 Pa. 415, 428-30, 787 A.2d 394, 

### 401-03 (2001). Waiver is 

### made voluntarily if 

### the decision to 

### make it is 

### the 

### product of a free 

### and 

### unconstrained choice. 622 Pa. 

### at 114, 79 A.3d 

### at 1066. 14. The Lyons 

### Court continued: In 

### determining whether 

### a waiver is valid, a 

### suppression court looks to 

### the totality of 

### the 

### circumstances surrounding the waiver, 

### including 

### but not limited to 

### the 

### declarant's physical and psychological 

### state, the 

### attitude exhibited by the police 

### during the 

### interrogation, 

### and any 

### other factors which may serve to 

### drain one's powers of 

### resistance to 

### suggestion and coercion. 

### DeJesus, 567 Pa. 

### at 429-30, 787 A.2d 

### at 402-03. Id. 15. In Commonwealth v. Mitchell, 

### the Pennsylvania Supreme Court 

### instructed 

### that the totality of 

### the circumstances 

### must be 

### considered in 

### evaluating the 

### voluntariness of 

### a confession. The 

### determination of 

### whether a defendant has validly waived 

### his Miranda rights 

### depends 

### upon a two

### -prong analysis: (1) 

### whether the waiver was 

### voluntary, in 

### the 

### sense 

### that defendant's choice was 

### not 

### the end 

### result of 

### governmental 

### pressure, and (2) 

### whether the 21waiver was knowing 

### and intelligent, in 

### the sense 

### that it was made with full 

### comprehension of 

### both the 

### nature of the 

### right being 

### abandoned and the consequence of 

### that choice. 588 Pa. 19, 

### 53-54, 902 A.2d 

### 430, 451 (2006). 16. Finally, in Templin, 

### supra, addressing the 

### voluntariness of the waiver 

### prior to the 

### defendant's 

### statement in 

### that case, the Pennsylvania Supreme Court reasoned 

### as follows: In 

### determining 

### voluntariness, the 

### question "is 

### not whether the 

### defendant would have 

### confessed without interrogation, 

### but whether the 

### interrogation was so 

### manipulative or coercive 

### that it 

### deprived the 

### defendant of 

### his ability to 

### make 

### a free 

### and 

### unconstrained decision to 

### confess." Nester, 551 Pa, 

### at 163, 709 A.2d 

### at 882; 

### Jones, 457 Pa. 

### at 430, 322 A.2d 

### at 124 (same); 

### see also Miller, 796 F.2d 

### at 604 ("The 

### question in 

### each case is 

### whether the defendant's will was 

### overborne when he confessed"). "By 

### the same token, the law does 

### not require the coddling of

### those accused of crime. One 

### such need 

### not be 

### protected against his own 

### innate desire to 

### unburden himself." 568 Pa. 

### at 317, 795 A.2d 

### at 966. 17. 

### Instantly, Defendant 

### asserts 

### that his 

### statements outside of 

### his 

### apartment and in 

### the open detective working 

### area must be 

### suppressed because they were 

### not voluntarily given. 18. Specifically, 

### Defendant proffers 

### that these initial 

### statements were 

### the 

### product of coercion provided 

### without Miranda 

### warnings. In 

### addition, 

### Defendant argues 

### that the 

### subsequent statement and 

### consents given 

### after the Miranda 

### warnings are fruit of 

### the poisonous tree. 19. 

### Considering 

### the totality of 

### the 

### circumstances surrounding 

### that statements Defendant provided 

### at the scene as 

### determined above, 

### the

22

### undersigned concludes 

### that Defendant was 

### not in 

### custody at the time of these 

### statements, nor was he 

### interrogated. 20. These 

### circumstances include the following facts:
A. The officers 

### and detectives 

### responded to 

### Defendant's 

### apartment building in 

### response to a call made by 

### Defendant and his two 

### friends; B. 

### Defendant voluntarily led officers 

### up to 

### his 

### apartment and provided his key for 

### them to 

### unlock the door to 

### his 

### apartment; C. 

### Defendant was 

### not a 

### suspect; D. Once 

### Defendant was comfortably 

### seated on the 

### steps leading to 

### his 

### apartment, Officer Hoover 

### began taking down 

### Defendant's biographical information 

### and asking general 

### questions to 

### assist in the homicide investigation; E. Officer Hoover did 

### not 

### ask any specific 

### questions about Defendant's involvement, 

### rather the inquiries were 

### made to 

### determine who may have 

### had access to 

### Defendant's 

### apartment that day; F. 

### Defendant was awake 

### and alert, calm 

### and cooperative, 

### appeared to 

### understand what was 

### happening and never 

### appeared 

### reluctant to provide 

### the 

### requested information; G. The officers did 

### not 

### brandish any 

### weapons during this time 

### and the conversation remained calm with no 

### raised voices; H. 

### Defendant was not placed in 

### restraints or physically led 

### anywhere;

23I. 

### Defendant voluntarily agreed to 

### accompany Officer Hoover to 

### the police facility to 

### assist with 

### the investigation into Leroy McCray's 

### death and provide a 

### written 

### statement; J. Officer Hoover did 

### not 

### ask any 

### questions on 

### the way to the police 

### station;
K. Officer Hoover 

### brought Defendant into the police 

### station 

### through the 

### patrol door 

### instead of 

### the enclosed sally 

### port and walked him to the open roll call room; 

### and
L. 

### Defendant 

### sat with 

### his friends while he 

### waited to give his 

### written statement. 21. This 

### Court found Officer Hoover's 

### testimony to be very credible. 22. 

### Based 

### upon these circumstances, no 

### custodial interrogation took place 

### leading up to Detective 

### Richard's arrival. Accordingly, 

### Miranda warnings
were 

### unnecessary. 23. 

### Considering 

### the totality of 

### the 

### circumstances leading 

### up to the 

### fourth and final 

### portion of 

### Defendant's written statement, the 

### undersigned concludes 

### that Defendant was 

### not in 

### custody 

### at the time of 

### the first, second 

### and third portions of 

### his written 

### statement. 24. These 

### circumstances include the following facts: A. Detective 

### Richard 

### and Detective Sowell 

### arrived in 

### the roll call
room 

### dressed in 

### plain clothes 

### and unarmed; B. 

### Defendant voluntarily followed 

### the detectives into 

### an open 

### detectives' office 

### area;
24C. 

### Defendant was 

### not placed in 

### restraints or 

### physically led anywhere; D. The door to 

### the 

### area remained open 

### throughout this time; E. 

### Defendant was 

### not a 

### suspect; F. 

### Defendant's demeanor was cooperative, 

### talkative 

### and casual;
G. 

### Defendant 

### appeared to be 

### awake 

### and alert and not 

### under the 

### influence of 

### drugs or alcohol; H. 

### Defendant specifically 

### stated he was giving the 

### statement voluntarily;
I. 

### Defendant was provided 

### breaks to 

### use the restroom, water 

### and food; 

### and J. Defendant was free to leave the police 

### station. 25. In 

### addition, Detective 

### Richard 

### and Defendant 

### maintained a 

### conversational tone 

### during the interview. The 

### detectives did 

### not raise their voices 

### at any time. The 

### detectives did 

### not 

### threaten Defendant or 

### make any 

### promises to 

### him to 

### obtain his statement. Defendant had not asked to leave 

### and 

### had not 

### asked to 

### stop the questioning. 26. 

### Based 

### upon these circumstances, no 

### custodial interrogation took place 

### leading 

### up to 

### and 

### through the first 

### three portions of 

### Defendant's 

### statement. 27. Accordingly, 

### Miranda warnings were 

### unnecessary during the first 

### three portions of 

### the interview.

2528. Once Detective 

### Richard 

### suspected 

### that Defendant may 

### have not been 

### truthful in 

### his first three 

### statements about where 

### and with whom 

### Defendant 

### had been earlier 

### that day, 

### the Detective 

### explained to 

### Defendant that they would be moving into 

### an office.

29. Once the detectives 

### and Defendant 

### had moved into 

### the 

### lieutenant's office for 

### the fourth portion of 

### Defendant's written statement, the 

### undersigned concludes 

### that the interview 

### became a 

### custodial interrogation necessitating Miranda 

### warnings.

30. Detective 

### Richard 

### read Defendant his 

### constitutional rights under Miranda before 

### asking any additional 

### questions.

31. 

### Defendant acknowledged his rights as advised by Detective 

### Richard 

### and as he 

### read on 

### the waiver form.

32. 

### Defendant reviewed 

### and signed 

### the waiver form.

33. 

### Defendant did 

### not 

### ask to 

### speak with 

### an attorney.

34. In view of 

### the totality of the 

### circumstances surrounding the waiver, 

### this Court concludes 

### that Defendant voluntarily waived 

### his rights to 

### remain silent, to 

### speak with 

### an attorney before 

### continuing with the 

### questioning and to 

### refuse to 

### answer any 

### questions.

35. These 

### circumstances include the following facts:
A. 

### Defendant was 34 

### years old on 

### September 23, 2017; B. 

### Defendant was 

### awake 

### and alert and gave the detectives no


### reason to believe 

### that he did 

### not 

### understand the 

### questions or 

### what was 

### happening;

26C. 

### Defendant displayed no 

### indicia of

### impairment; D. There was no 

### undue delay 

### and E. 

### Defendant's 

### responses to 

### the questions were 

### appropriate. 36. In 

### addition, Defendant acknowledged 

### that Detective 

### Richard and the 

### other detectives 

### had treated him "great"; the tone of 

### the detectives 

### remained calm 

### and conversational 

### throughout the night; 

### Defendant did 

### not ask
to 

### end the interview; 

### Defendant did 

### not 

### request to 

### speak with 

### an attorney; at

no time did 

### the detectives 

### threaten Defendant or 

### promise 

### Defendant anything in 

### exchange for 

### his written 

### statement, for 

### the consents to 

### search or for his 

### consent to 

### videotape his 

### statement and Defendant took 

### breaks to 

### eat and drink 

### and use the 

### restroom. 37. This 

### Court found Detective 

### Richard's testimony credible. 38. Hence, 

### Defendant voluntarily waived 

### his 

### constitutional rights 

### under Miranda 

### and 

### that waiver is valid. 39. Having 

### considered the totality of 

### the circumstances surrounding Defendant's 

### statements to 

### the law 

### enforcement officers, 

### the 

### undersigned opines 

### that Defendant waived 

### his Miranda 

### rights and made 

### his final 

### portion of his 

### written 

### statement as well 

### as his videotaped 

### statement voluntarily, 

### and 

### that the 

### consents he 

### provided were 

### the 

### product of free 

### and 

### unconstrained choice. 

### 40. Nothing in 

### this opinion 

### prohibits Defendant from 

### arguing the 

### voluntariness of 

### his 

### statement to 

### the jury.

2741. An 

### appropriate order follows.

BY THE COURT:

Copies 

### sent on 

### 05/03/18 to: By E-Mail: Deputy 

### District Attorney 

### Thomas W. McGoldrick 

### Assistant District Attorney Douglas Lavenberg 

### John F. Walko, 

### Esquire, Defense 

### Counsel By 

### First-Class Mail: Michael R. Bell, Montgomery 

### County Correctional Facility



### Judicial Secretary

28