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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, 20181in 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. 
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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.
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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 Miranda4rights. 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. 
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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. 
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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 legal error, the suppression court’s legal 

conclusions are not binding on an appellate court, whose duty it 

is to determine if the suppression court properly 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)). 
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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 condition 
J-A27002-20

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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?
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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. 
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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.
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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 criminal 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.
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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 of 
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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. 
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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 trial 
J-A27002-20

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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: 2/22/21
Circulated 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. 

2 
10. 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 

4 
of 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. 

8 
41. 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? 

10 
A: 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 

12 
Detective 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 

13 
with 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. 

14 
63. 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. 

15 
69. 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 

17 
confession 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). 

20 
12. 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 

21 
waiver 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; 

23 
I. 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; 

24 
C. 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. 

25 
28. 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; 

26 
C. 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. 

27 
41. 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