Com. v. Irving, L.

J-S41006-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LORON IRVING :

:

Appellant : No. 425 EDA 2024

Appeal from the Judgment of Sentence Entered January 8, 2024

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

No(s): CP-39-CR-0001400-2022

BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED DECEMBER 05, 2024

Loron Irving (Appellant) appeals from the judgment of sentence entered

following his conviction by a jury of first-degree murder, and by the trial court

of persons not to possess firearms (PPF). 1 After careful review, we affirm.

In the early morning hours on February 24, 2022, Appellant patronized

Big Woody’s Bar in Allentown, Pennsylvania. Appellant went to the bar with

his friend, Clarence Brown (Brown). At around 2:00 a.m., the bar announced

“last call” and Appellant exited the bar. Appellant smoked a cigarette in the

parking lot while waiting for Brown, who was arguing with other bar patrons

in the parking lot.

____________________________________________

1 See 18 Pa.C.S.A. §§ 2502(a), 6105(a)(1).

J-S41006-24

Appellant subsequently interjected himself into the argument,

exchanging words with the victim, Anthony Lee Rodgers (Rodgers or the

victim). During the argument, Rodgers walked away and briefly entered a

vehicle approximately seven parking spaces away from Appellant. At this

time, Appellant removed a firearm from his clothing, and held it, pointed

down, along his right side. Rodgers initially began walking in Appellant’s

direction, but then began walking away. At the time, Rodgers and Appellant

were separated by a parked vehicle.

Appellant called out to Rodgers, who began walking towards Appellant.

Appellant immediately raised his firearm and shot Rodgers in the chest.

Appellant then fired another shot at Rodgers, striking him in the torso and

arm. As Rodgers attempted to run away from Appellant, Appellant fired an

additional six shots at Rodgers’ back, until Rodgers collapsed. Appellant then

quickly walked away from the scene. Rodgers, who was found to be carrying

only brass knuckles, died from his injuries.

The entire incident was captured on high-definition surveillance videos,

which police obtained from the Allentown Commons Mall. Appellant

subsequently was identified as the perpetrator, and police arrested him.

Appellant filed an omnibus pretrial suppression motion to suppress statements

he made to police, which the trial court denied on November 14, 2022.

Appellant was tried before a jury and the trial court from October 31,

2023, through November 3, 2023. The jury convicted Appellant of first-degree

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murder; the trial court convicted Appellant of PPF. On January 8, 2024, the

trial court sentenced Appellant to life in prison for his murder conviction, and

a consecutive prison term of 8-20 years for his conviction of PPF. However,

the sentencing order for Count 1 was titled: “Criminal Homicide F1 2501(a).”

Sentencing Order (murder), 10/8/24. The sentencing order for Appellant’s

PPF conviction did not indicate whether Appellant was eligible for sentencing

under the Recidivism Risk Reduction Incentive Act (RRRI), 61 Pa.C.S.A. §§

4501-4512.

On January 10, 2024, the trial court entered a corrected sentencing

order regarding Appellant’s sentence for PPF. The corrected sentencing order

indicated Appellant is not eligible for sentencing under the RRRI. Corrected

Sentencing Order (PPF), 1/10/24, at 1. On January 30, 2024, Appellant timely

filed a notice of appeal from the trial court’s January 8, 2024, judgment of

sentence. On January 31, 2024, the trial court ordered Appellant to file

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. 2

Trial Court Order, 1/31/24.

Notwithstanding Appellant’s appeal, on January 31, 2024, the trial court

entered a corrected sentencing order pertaining to Appellant’s first-degree

murder sentence. This corrected sentencing order changed the heading of the

____________________________________________

2 Appellant timely complied with the trial court’s order.

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sentencing sheet from “Ct. 1 Criminal Homicide F1 2501(a)” to “Ct. 1 Murder

Of The First Degree H1 2502(a).” Corrected Sentencing Order, 1/31/24, at 1.

We initially observe that, “after an appeal is taken … the trial court …

may no longer proceed further in the matter.” Pa.R.A.P. 1701(a); see also 42

Pa.C.S.A. § 5505 (stating that a court may modify any order within thirty days

after its entry so long as no appeal from such order has been taken). “After

an appeal is taken,” the trial court may “[g]rant reconsideration of the order

which is the subject of the appeal,” if “an application for reconsideration of the

order is filed in the trial court … within the time provided or prescribed by

law[.]” Pa.R.A.P. 1701(b)(3). The trial court must enter an order expressly

granting reconsideration “of such prior order is filed in the trial court … within

the time prescribed by these rules for the filing of a notice of appeal.”

Pa.R.A.P. 1701(b)(3). Thus, a court may not modify an order after thirty days

have elapsed unless a party has filed a timely motion for reconsideration and

the court expressly grants the motion before an appeal is taken.

Commonwealth v. Haughwout, 816 A.2d 247, 249-50 (Pa. Super. 2003),

Our review discloses the trial court’s January 10, 2024, corrected

sentencing order pertained only to Appellant’s PPF conviction and was entered

within 30 days of Appellant’s judgment of sentence and prior to any appeal.

See 42 Pa.C.S.A. § 5505. Thus, we discern no error by the trial court with

regard to the court’s January 10, 2024, corrected sentencing order.

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The trial court filed its final corrected sentencing order on January 31,

2024, after Appellant timely filed his notice of appeal. See 42 Pa.C.S.A. §

5505 (“Except as otherwise provided or prescribed by law, a court upon notice

to the parties may modify or rescind any order within [thirty] days after its

entry, notwithstanding the prior termination of any term of court, if

no appeal from such order has been taken or allowed” (emphasis

added)). Nevertheless, this Court has recognized an exception to Section

5505’s 30-day time limit for the correction of “clear clerical errors.”

Commonwealth v. Rosario, 248 A.3d 599, 606 (Pa. Super. 2021). “[A]n

alleged error must qualify as a clear clerical error (or a patent and obvious

mistake) in order to be amenable to correction.” Id. (quoting

Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa. Super. 2011) (en banc)).

Our review discloses that, at the close of trial, the jury convicted

Appellant of first-degree murder. Jury Verdict, 11/3/23. At the sentencing

hearing, the trial court observed, on the record, that the presentence

investigation report (PSI) included an attached memorandum. N.T., 1/8/24,

at 2. The trial court stated: “There was a PSI that was ordered, … but then

there was a memorandum additionally to that PSI because of an error by the

PSI writer, the third-degree murder versus first.” Id. No further explanation

was offered on the record. The trial court subsequently sentenced Appellant

to life in prison without parole for his conviction of first-degree murder. Id.

at 7.

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Although Appellant clearly was convicted of first-degree murder and

sentenced for that conviction, the trial court’s January 8, 2024, sentencing

order was titled “Ct. 1 Criminal Homicide F1 2501(a),” a patent and obvious

clerical error. Sentencing Order, 1/8/24, at 1 (unpaginated). The trial court’s

January 31, 2024, corrected sentencing order corrected the obvious error to

reflect Appellant’s conviction of first-degree murder. Under these

circumstances, we discern no error by the trial court in correcting the “patent

and obvious” clerical error. See Rosario, 248 A.3d at 606. Because of the

unique procedural posture of this case, we conclude that Appellant properly

and timely appealed from his January 8, 2024, judgment of sentence, as

corrected by the trial court’s subsequent orders. For this reason, we leave the

caption of the instant appeal unchanged. 3

Appellant presents the following issues for our review:

1. Whether the evidence was sufficient to support [Appellant’s]

conviction of first-degree murder as a result of the

Commonwealth’s failure to disprove the defenses of self-defense

and imperfect self-defense[?]

2. Whether the trial court erred in denying [Appellant’s] motion

to suppress statements when [Appellant] never provided law

enforcement with a knowing, intelligent[,] and voluntary waiver

of his Fifth Amendment rights[?]

Appellant’s Brief at 5 (capitalization modified).

____________________________________________

3 In doing so, we recognize that Appellant received a corrected sentence for

his PPF conviction. However, as Appellant challenges only his conviction of

first-degree murder, we decline to change the caption of the instant appeal to

reflect a different date of sentencing for Appellant’s PPF conviction.

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Appellant first challenges the sufficiency of the evidence sustaining his

conviction of first-degree murder. Id. at 12. Appellant argues the evidence

“was insufficient to prove beyond a reasonable doubt that Appellant was not

acting in self-defense, [where] he acted under a reasonable or unreasonable

belief that deadly force was necessary.” Id. at 16. Appellant states that the

surveillance video footage showed his interaction with the victim in the parking

lot. Id. He claims that,

after a short interaction, the victim walked away while he

continued to argue with Appellant, only to then reapproach the

rear of the vehicle and [a]round the rear of the vehicle to where

Appellant was standing. All the while the victim is arguing and

approaching Appellant[,] he is reaching towards his waistband.

Appellant’s belief that the victim was carrying a weapon w[as]

confirmed when[,] during the police investigation[,] they

recovered brass knuckles underneath the victim’s body.

Id. (citations omitted). According to Appellant, the victim’s actions supported

Appellant’s belief that the victim posed a danger to Appellant. Id. Appellant

claims his belief is supported by his prior experiences with gun violence as

well as the brass knuckles found under the victim. Id.

A sufficiency claim “presents a question of law, for which our standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Packer, 168 A.3d 161, 166 (Pa. 2017).

When reviewing a sufficiency of the evidence claim, this Court

must view the evidence and all reasonable inferences to be drawn

from the evidence in the light most favorable to

the Commonwealth as verdict winner, and we must determine if

the evidence, thus viewed, is sufficient to prove guilt beyond a

reasonable doubt. This Court may not substitute its judgment for

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that of the factfinder. If the record contains support for the

verdict, it may not be disturbed.

Commonwealth v. Burns, 765 A.2d 1144, 1147 (Pa. Super. 2020) (citations

omitted).

“[I]t is the fact-finder’s province to weigh the evidence, determine the

credibility of witnesses, and believe all, part, or none of the evidence

submitted.” Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013).

“[W]hen appellate review involves the trial court’s findings of fact and

credibility determinations, those findings are binding on the reviewing court if

they find support in the record[.]” Commonwealth v. Norton, 201 A.3d

112, 121 (Pa. 2019) (citation omitted).

In applying the above test, we may not weigh the evidence and

substitute our judgment for that of the fact-finder. In addition, …

the facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. Any doubts

regarding a defendant’s guilt may be resolved by the fact-finder

unless the evidence is so weak and inconclusive that as a matter

of law no probability of fact may be drawn from the combined

circumstances. The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt by

means of wholly circumstantial evidence. Moreover, in applying

the above test, the entire record must be evaluated and all

evidence actually received must be considered. Finally, the trier

of fact while passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe all, part or none

of the evidence.

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011) (citation

omitted).

The Pennsylvania Supreme Court has identified the elements of first-

degree murder as follows: “(1) a human being was unlawfully killed; (2) the

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defendant was responsible for the killing; and (3) the defendant acted with

malice and a specific intent to kill.” Commonwealth v. Martin, 101 A.3d

706, 718 (Pa. 2014) (citing 18 Pa.C.S.A. § 2502(a)). Circumstantial evidence

may prove specific intent and malice where a defendant uses a deadly weapon

on a vital part of the victim’s body. Commonwealth v. Hicks, 156 A.3d

1114, 1124 (Pa. 2017); see also Commonwealth v. O’Searo, 352 A.2d 30,

37 (Pa. 1976) (stating the deadly weapon presumption is a presumption of

fact “founded on human experience,” since “[o]ne does not normally use a

deadly weapon on a vital part of another’s body unless he intends to kill.”

(citation omitted)).

[T]he period of reflection required … to establish the specific intent

to kill may be very brief[. I]n fact[,] the design to kill can be

formulated in a fraction of a second. Premeditation and

deliberation exist whenever the assailant possessed the conscious

purpose to bring about death.

Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015).

Appellant asserted a justification defense at trial.

“To prevail on a justification defense, there must be evidence that

the defendant ‘(a) … reasonably believed that he was in imminent

danger of death or serious bodily injury and that it was necessary

to use deadly force against the victim to prevent such harm; (b)

that the defendant was free from fault in provoking the difficulty

which culminated in the slaying; and (c) that the [defendant] did

not violate any duty to retreat.’” Commonwealth v. Sepulveda,

… 55 A.3d 1108, 1124 (Pa. 2012) (citing Commonwealth v.

Samuel, … 590 A.2d 1245, 1247-48 (Pa. 1991)). Thus, the

Commonwealth satisfies its burden of disproving self-defense

where it proves any one of the following: the defendant did not

reasonably believe that it was necessary to kill to protect himself

from imminent death or great bodily harm; the defendant was not

free from fault in provoking or continuing the difficulty which

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resulted in the slaying; or, the defendant violated

a duty to retreat or avoid the danger. Id.; Commonwealth v.

Burns, … 416 A.2d 506, 507 (Pa. 1980).[FN] Regarding the

derivative and lesser defense of imperfect self-defense, all

principles of justification must be satisfied, with the exception that

there exists an unreasonable, rather than a reasonable belief that

deadly force was required to save the defendant’s life.

Commonwealth v. Tilley, … 595 A.2d 575, 582 (Pa. 1991).

[FN] A defendant has no burden to prove a claim of self-defense.

Rather, once some evidence, from whatever source, is presented

to justify a finding of self-defense, the burden is upon the

Commonwealth to prove beyond a reasonable doubt that the

defendant was not acting in self-defense. Sepulveda, 55 A.3d at

1124 n.13 (citing Commonwealth v. Black, … 376 A.2d 627,

630 (Pa. 1977)).

Commonwealth v. Rivera, 108 A.3d 779, 791 (Pa. 2014) (footnote in

original). Finally, the fact-finder “is not required to believe the defendant’s

testimony that he thought that he was in imminent danger and acted in self-

defense.” Commonwealth v. Jones, 271 A.3d 452, 458 (Pa. Super. 2021)

(citations omitted).

The trial court summarized the relevant trial evidence in a light most

favorable to the Commonwealth:

[T]he evidence established that on the morning of February 24,

2022, at approximately 2:00 A.M., [Appellant] was at Big Woody’s

Bar and Grill … when “last call” was announced and the bar closed.

([Commonwealth’s Trial Exhibit (C. Ex.)] 4). 4 Earlier in the night,

there had been a group of men arguing and carrying on within the

establishment. This argument continued into the parking lot after

Big Woody’s Bar and Grill closed and the people were filing out of

____________________________________________

4C. Ex. 4 is a photograph depicting an overview of the plaza including Big

Woody’s Bar and Grill.

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the bar. [Appellant], also a patron at Big Woody’s Bar and Grill,

exited the bar. He proceeded to smoke a cigarette within the

parking lot, approximately seven (7) parking spots away from

where the argument was transpiring. (C. Ex. 2) 5; (C. Ex. 3).6

According to [Appellant], he was waiting for … Brown, who was

now engaged in an argument with three (3) other men, but this

evidence remained uncorroborated throughout the trial.

Even though [Appellant] was not a participant in the

argument, he interjected himself by angrily gesturing towards the

people arguing and walking towards that area of the parking lot.

(C. Ex. 2); (C. Ex. 3). [Appellant] soon thereafter exchanged

words with … Rodgers. (C. Ex. 2); (C. Ex. 3). Shortly thereafter,

[] Rodgers went into a car that was parked approximately seven

(7) parking spaces away from where [Appellant] was standing.

(C. Ex. 2); (C. Ex. 3). [Appellant] did not leave the area,

despite there being no impediments in the northeast area

of the parking lot. (C. Ex. 2); (C. Ex. 3); (C. Ex. 4). Instead,

[Appellant] removed a firearm from his clothing and held it down

by his side in his right hand. (C. Ex. 2); (C. Ex. 3). [] Rodgers

then began to walk in [Appellant’s] direction but walked

away before he rounded a parked vehicle behind which

[Appellant] was standing. (C. Ex. 2); (C. Ex. 3). While []

Rodgers was on the other side of the parked vehicle,

[Appellant] reengaged [] Rodgers[,] who then walked

around the rear of the vehicle. (C. Ex. 2); (C. Ex. 3). As []

Rodgers was at the rear of the vehicle walking towards

[Appellant], [Appellant] immediately raised his firearm and shot

[] Rodgers in the chest. (C. Ex. 2); (C. Ex. 3). Mr. Rodgers

buckled. (C. Ex. 2); (C. Ex. 3). [Appellant] proceeded to fire

another round at [] Rodgers, striking him in his arm and torso. (C.

Ex. 2); (C. Ex. 3). As the victim turned to run, [Appellant]

fired six (6) additional times at Mr. Rodgers’ back until []

Rodgers collapsed on the pavement. (C. Ex. 2); (C. Ex. 3).

[Appellant] briskly walked away, fleeing the scene in a northeast

direction through the parking lot of Big Woody’s Bar and Grill. (C.

Ex. 2); (C. Ex. 3). The entire shooting was captured on high-

definition video from multiple views obtained from Allentown

____________________________________________

5 C. Ex. 2 is a flash drive containing the surveillance video of the exterior of

Big Woody’s Bar and Grill on February 24, 2022.

6 C. Ex. 3 is a stipulation between the parties.

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Commons Mall.[FN] (C. Ex. 2); (C. Ex. 3). Ultimately, the shooter

was identified as [Appellant].

[FN] Members of the Allentown Police Department viewed the video

on scene and Officer Jeffrey Phillips removed the hard drive from

the possession of the Allentown Commons Mall to preserve the

video as evidence.

Trial Court Opinion, 4/30/24, at 4-6 (emphasis added; indented footnote in

original; three footnotes identifying exhibits added; two footnotes omitted).

The trial court rejected Appellant’s sufficiency challenge to his first-

degree murder conviction:

Viewing all the evidence and all reasonable inferences arising

therefrom in the light most favorable to the Commonwealth, it is

clear that the evidence was sufficient to enable a finder of fact to

conclude that all the elements of the offenses were established

beyond a reasonable doubt. Indeed, at the conclusion of the jury

trial, the jury had no doubt that [Appellant] intentionally killed …

Rodgers, as the evidence demonstrated that the killing was willful,

deliberate, and premeditated. Moreover, the killing was not in

self-defense or imperfect self-defense, as there was sufficient

evidence to demonstrate that [Appellant] was the aggressor and

failed to comply with his duty to retreat….

Id. at 13. Upon careful review, we agree.

The evidence established Rodgers initially walked away from the

altercation. Rather than retreating, Appellant reengaged with Rodgers, pulling

out a firearm and shooting Rodgers. Appellant continued shooting Rodgers in

the back as Rodgers attempted to flee. Thus, the Commonwealth’s

evidence established beyond a reasonable doubt that Appellant was not free

from fault in “provoking or continuing the difficulty which resulted in the

slaying”; and Appellant “violated his duty to retreat or avoid the danger.”

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Rivera, 108 A.3d at 791. Appellant’s challenge to the jury’s rejection of his

justification defenses lacks merit, and his challenge to the sufficiency of the

evidence underlying his murder conviction fails.

Appellant next argues that the trial court improperly denied his pretrial

motion to suppress evidence of his confession to police. Appellant’s Brief at

17. Appellant argues he did not make a knowing, intelligent and voluntary

waiver of the protections afforded by the Fifth Amendment to the United

States Constitution. Id. at 16, 19. According to Appellant, on February 24,

2022, he “repeatedly told the police that he did not want to answer their

questions nor waive his rights, yet the police persisted in questioning him.”

Id. at 19. Appellant further argues,

even if this Court finds that Appellant was properly

[Mirandized,7] the interrogation was still so manipulative and

coercive that it deprived him of his ability to make a free and

unconstrained decision to speak with police.

Id. (footnote added).

Appellant explains that when presented with the Miranda waiver form,

he immediately stated he did not wish to waive his rights. Id. Appellant

argues that within the next ten minutes, he confirmed his decision not to waive

his Fifth Amendment protections at least eight times. Id. at 19-20. Appellant

claims he signed the Miranda waiver form only after being “constantly

harassed and harangued by the detectives.” Id. at 20. Appellant claims his

____________________________________________

7 Miranda v. Arizona, 382 U.S. 925 (1965).

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waiver was not voluntary, where he had “repeatedly expressed an unequivocal

assertion that he did not want to speak with [police] and wanted to remain

silent.” Id.

Appellant further argues,

[t]he detectives also told Appellant he would retain his rights,

despite that clearly not being the case. The detectives …

misinformed Appellant of his rights by explaining that, “unless you

have a lawyer on retainer that we can call down here, you’re okay

with talking to us at the moment without an attorney.” Simply

stated, the detective would not take no for an answer.

Id. at 20-21.

Our review of “a challenge to the denial of a suppression motion is

limited to determining whether the suppression court’s factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct.” Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.

2010). We may only review “the evidence presented at the suppression

hearing when examining a ruling on a pre-trial motion to

suppress.” Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa. Super. 2019)

(citation omitted).

It is within the suppression court’s sole province as factfinder to

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

their testimony. The suppression court is free to believe all, some

or none of the evidence presented at the suppression hearing. …

Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018) (citation

omitted). This Court is bound by the suppression court’s factual findings that

are supported by the record, but we are not bound by its legal conclusions,

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which we review de novo. Commonwealth v. Briggs, 12 A.3d 291, 320-21

(Pa. 2011).

The Fifth Amendment commands, in relevant part, that “No person …

shall be compelled in any criminal case to be a witness against himself ….”

U.S. CONST. amend V. To effectuate that constitutional provision, the Supreme

Court of the United States has explained that, once in police custody, “the

accused must be adequately and effectively apprised of his rights and the

exercise of those rights must be fully honored.” Miranda, 384 U.S. at 467.

Thus, an arrested individual

must be warned prior to any questioning that he has the right to

remain silent, that anything he says can be used against him in a

court of law, that he has the right to the presence of an attorney,

and that if he cannot afford an attorney one will be appointed for

him prior to any questioning if he so desires….

Id. at 479. “Opportunity to exercise these rights must be afforded to him

throughout the interrogation.” Id. “After such warnings have been given,

and such opportunity afforded him, the individual may knowingly and

intelligently waive these rights and agree to answer questions or make a

statement.” Id.

When officers give the Miranda warnings prior to questioning suspects,

whether inculpatory statements made thereafter are admissible at trial is an

inquiry that:

has two distinct dimensions. First, the relinquishment of the right

must have been voluntary in the sense that it was the product of

a free and deliberate choice rather than intimidation, coercion, or

deception. Second, the waiver must have been made with a full

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awareness both of the nature of the right being abandoned and

the consequences of the decision to abandon it. Only if the totality

of the circumstances surrounding the interrogation reveal both an

uncoerced choice and the requisite level of comprehension may a

court properly conclude that Miranda rights have been waived.

Int. of N.M., 222 A.3d 759, 772 (Pa. Super. 2019) (citations omitted). Thus,

if the apprehended suspect knowingly and intelligently waived his Fifth

Amendment right to remain silent, the prosecution may use the confession in

its case-in-chief. Id.

The suppression court issued the following findings of fact, related to

Appellant’s waiver of his Miranda rights:

1. On February 24, 2022, Detective Raymond Ferraro [(Detective

Ferraro)] of the Allentown Police Department responded to Big

Woody’s Bar and Grill … for the reporting of a shooting. Upon

arrival, members of the Allentown Police Department located

… [Rodgers] deceased from what appeared to be multiple

gunshot wounds. Officers also observed several 9 mm spent

shell casings in the parking lot in front of Big Woody’s Bar and

Grill.

2. As a result of the investigation into the death of [] Rodger[s],

[Appellant] was taken into custody on an outstanding Lehigh

County Adult Probation and Parole warrant. [Appellant] was

transported to the Headquarters of the Allentown Police

Department and was subsequently interviewed by Detective

Ferraro and Detective Amaury Almonte [(Detective Almonte),]

in an interview room located in the Criminal Investigations

Division of the Allentown Police Department[,] with regard to

the homicide that occurred that day …. ([Sentencing Exhibit

(Ex.)] 1).8 At the commencement of the interview, [Appellant]

was offered both food and beverage, and he was provided with

a soda, as well as a blanket. ([] Ex. 1).

____________________________________________

8 Ex. 1 is a flash drive containing the video recording of Appellant’s police

interview on February 24, 2022.

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3. After biographic information was acquired from [Appellant],

Detective Ferraro explained to [Appellant] that [police] could

not speak with him unless he agreed to talk with them and

waived his Miranda rights. ([] Ex. 1). Prior to even being

read the Allentown Police Department Rights Warning and

Waiver Form [(waiver form)], [Appellant] indicated that he did

not want to waive his rights because “how I am supposed to

have rights after I waive my rights?” ([] Ex. 1). In response,

Detective Almonte attempted to explain to [Appellant] that the

waiver of his rights was limited to that interview and it did not

extend beyond that interview to future proceedings. ([] Ex.

1). He further elaborated and told [Appellant] that “it is

completely up to [him]” and that he “can answer what [he

wants]” and not answer what he wants, and that the [waiver

form] explained that concept. ([] Ex. 1); ([] Ex. 2). 9

4. Still confused about the future effect of waiving his Miranda

rights during that interview, [Appellant] inquired, “If I waive

rights, what rights do I have?” ([] Ex. 1). Detective Ferraro

assured [Appellant] that the waiver of his Miranda rights

would not extend beyond that interview. ([] Ex. 1).

5. Detective Ferraro again reiterated that he wanted [Appellant]

to understand his rights and that he was going to read them

to [Appellant] from the [waiver form]. ([] Ex. 1); ([] Ex. 2).

Prior to the Miranda rights being read to [Appellant],

[Appellant] indicated, “I don’t know, there’s something wrong

with that, if I waive my rights.”

6. As the Miranda warnings had yet to be read to [Appellant],

Detective Ferraro believed that reading the [waiver form]

would help to clear up any confusion that [Appellant] had with

regard to his legal rights. ([] Ex. 2). Detective Ferraro

explicitly stated to [Appellant] that he wanted [Appellant] to

understand his rights. ([] Ex. 1).

7. Therefore, Detective Ferraro read the [waiver form] to

[Appellant]. ([] Ex. 1); ([] Ex. 2). At one point, [Appellant]

interrupted Detective Ferraro because he had a question. ([]

Ex. 1). Consequently, Detective Ferraro started over in

____________________________________________

9 Ex. 2 is Appellant’s signed Miranda warning/waiver.

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reading the [waiver form], and this time he read it line by line.

([] Ex. 1); ([] Ex. 2). Between each distinct right mentioned,

Detective Ferraro asked [Appellant] if he understood that

specific right. [Appellant] acknowledged that he understood

each right as they were individually read to him until Detective

Ferraro read the provision about being able to stop the

interview at any time. ([] Ex. 1); ([] Ex. 2). [Appellant]

requested that Detective Ferraro read that provision another

time. ([] Ex. 1); (C, Ex. 2), Detective Ferraro complied with

[Appellant’s] request and further explained that [Appellant]

could “stop at any time [he] want(s).” ([] Ex. 1). [Appellant]

indicated that he understood this right ([] Ex. 1).

8. At the conclusion of reading the [waiver form], Detective

Ferraro inquired, “Do you understand these rights?” (C. Ex.

1); ([] Ex. 2). [Appellant] indicated that he did. ([] Ex. 1).

Then, Detective Ferraro asked [Appellant], “With these rights

in mind, do you wish to talk with us?” ([] Ex. 1). To this

inquiry, [Appellant] replied, “I can stop when I want, but I’m

still waiving my rights.” ([] Ex. 1). Again, Detective Ferraro

reiterated that [Appellant] would “get [his] rights back the

minute [he] say[s he’s] done talking.” ([] Ex. 1).

9. Being still seemingly confused over the legal effect on future

proceedings of waiving his rights and executing the [waiver

form]. [Appellant] stated, “I’m not sure[.] [Y]ou keep

pressing me.” ([] Ex. 1). He further indicated, “I’m not sure

if I want to sign it.” ([] Ex. 1). Detective Ferraro then

indicated that he was not going to force [Appellant] to sign the

form but that [Appellant] needed to understand it. ([] Ex. 1).

[Appellant] acknowledged that he understood his rights for the

most part, but still appeared to be concerned over the future

impact of agreeing to waive his rights. ([] Ex. 1). In fact,

[Appellant] urged Detective Ferraro to write on the paper that

he would get his rights back, because “you can’t just tell me

that.” ([] Ex. 1). Detective Ferraro attempted to allay

[Appellant’s] concerns by explaining that his rights were

preserved through the law. ([] Ex. 1). [Appellant] replied,

“yes, you telling me that, but why it’s not saying that.” ([] Ex.

1). He further inquired, “when do I get my rights back?” ([]

Ex. 1). Detective Ferraro again explained that [Appellant’s]

rights would be restored as soon as he no longer wished to talk

any more. ([] Ex. 1).

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10. Detective Ferraro once again inquired of [Appellant] if he

wished to talk with them or if there was anything more that he

would like them to explain to him. (C. Ex. 1). In an abundance

of caution to confirm that [Appellant] understood his rights,

Detective Ferraro again read the [waiver form] line by line. ([]

Ex. 1); ([] Ex. 2). After each provision, Detective Ferraro

inquired if [Appellant] understood the right contained therein.

([] Ex. 1). [Appellant] indicated that he understood each

provision of the [waiver] form, until Detective Ferraro read the

provision regarding the ability to stop answering questions at

any time. ([] Ex. 1); ([] Ex. 2). [Appellant] requested to read

that one because “I don’t want you just telling me, you know

what I mean?” ([] Ex. 1).

11. After [Appellant] was given the opportunity to read [the form]

himself, Detective Ferraro once again inquired if [Appellant]

understood or if he had any questions. (C. Ex. 1). [Appellant]

indicated that he understood it but “I am questioning myself.”

([] Ex. 1). Detective Ferraro asked if with these rights in mind,

if [Appellant] wished to speak with them, to which [Appellant]

replied in the affirmative. ([] Ex. 1). However, when Detective

Ferraro asked if [Appellant] wanted to sign the [waiver form],

[Appellant] replied, “I’m still not sure.” ([] Ex. 1); (C. Ex 2).

To clarify, Detective Ferraro asked if [Appellant] was referring

to not being sure about talking with [police], and [Appellant]

indicated, “No, not about talking, about signing it, because

that’s my rights.” ([] Ex. 1). Consequently, Detective Ferraro

explained to [Appellant] that he did not need to execute the

[waiver form]. ([] Ex. 1); ([] Ex. 2).

12. [Appellant] explained that he did not want to sign the [waiver

form] because “I don’t want to waive my rights. I don’t feel

comfortable waiving my rights.” ([] Ex. 1). Again, Detective

Ferraro assured [Appellant] that he could stop talking at any

time, and he asked if [Appellant] understood this concept. ([]

Ex. 1). [Appellant] indicated that he did understand. ([] Ex.

1). Detective Ferraro reiterated that if [Appellant] would

decide to answer questions, he could stop at any time;

[Detective Ferraro] then asked if [Appellant] was comfortable

talking with [police]. ([] Ex. 1). To this, [Appellant] stated, “I

can stop at any time, have my rights back. How do I 100%

have it if I have to waive my rights?” ([] Ex. 1). Again,

Detective Ferraro explained to [Appellant] that the [waiver

form] was a standard document based on the landmark United

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States Supreme Court decision in [Miranda], and that he has

the right not to answer any questions. ([] Ex. 1).

13. At this time, [Appellant] reached for the [waiver form] and

signed it. ([] Ex. 1); ([] Ex. 2).

14. In addition, neither Detective Ferraro nor Detective Almonte

tried to intimidate, threaten, or coerce [Appellant]. ([] Ex. 1).

Indeed, [Appellant] was not handcuffed or tethered in any

fashion. ([] Ex. 1). Both Detective Ferraro and Detective

Almonte presented themselves calmly and never issued

threats to [Appellant]. ([] Ex. 1). The detectives were dressed

in plain clothes and did not display a firearm. ([] Ex. 1).

15. Once the interview began, [Appellant] did not request to speak

with an attorney. Also, [Appellant] never indicated that he

desired to terminate the interview at any time prior to the end

of the interview.

Trial Court Opinion (Suppression), 11/14/22, at 2-7 (footnotes added). The

suppression court further found that

[b]oth Detective Ferraro and Detective Almonte presented

themselves calmly, spoke in a conversational tone, and never

issued threats to [Appellant]. The detectives were dressed in plain

clothes and did not display a firearm.

Id. at 14.

The suppression court ultimately determined that Appellant knowingly

and intelligently waived his Fifth Amendment rights:

[B]ased on the totality of the circumstances, [the suppression

court] finds that [Appellant] indicated a clear willingness to speak

with the detectives without an attorney present. Indeed,

[Appellant] did not equivocate in his decision to speak with the

detectives, but rather continuously communicated his confusion

over the future legal effect of waiving his Miranda rights at that

time. [Appellant] was concerned that by waiving his rights and

executing the [waiver form], there would be a future legal impact

from this action in which he would permanently lose these

Miranda rights and not be able to reclaim them. …

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….

[The suppression court finds] that during the interview,

[Appellant] was oriented, appropriate, coherent, and logical.

Detective Ferraro and Detective Almonte appropriately and

adequately provided [Appellant] with his Miranda warnings.

Moreover, at the conclusion of his recital of the Miranda rights,

Detective Ferraro properly inquired if [Appellant] understood

these rights and if he wanted to speak with them with those rights

in mind, to which [Appellant] indicated that he did. [The

suppression court] concludes, based on the totality of the

circumstances, [Appellant] knowingly, voluntarily, and

intelligently waived his Miranda rights. Based on the evidence

introduced at the evidentiary hearing and the totality of the

circumstances, the [c]ourt finds that [Appellant] knowingly,

voluntarily, and intelligently waived his Miranda rights.

Id. at 9, 14.

The evidence supports the suppression court’s determination that

Appellant’s Miranda waiver “was the product of a free and deliberate choice

rather than intimidation, coercion, or deception.” Int. of N.M., 222 A.3d at

772. The totality of the circumstances demonstrate Appellant was apprised

and aware of “both of the nature of the right being abandoned and the

consequences of [his] decision to abandon it.” Id. Finally, we observe that

the suppression court was able to view video of Appellant’s waiver of his

Miranda rights. Because the suppression court’s findings are supported in

the record and we discern no legal error, Appellant’s suppression challenge

merits no relief. See Jones, 988 A.2d at 654. Accordingly, we affirm

Appellant’s judgment of sentence.

Judgment of sentence affirmed.

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Date: 12/5/2024

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