Com. v. Lookingbill, J.

J-S43029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA JUSTIN LOOKINGBILL

Appellant No. 1718 MDA 2015

Appeal from the Judgment of Sentence February 25, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001489-2013

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED AUGUST 02, 2016

Appellant, Joshua Justin Lookingbill, appeals from the judgment of

sentence entered February 25, 2014, in the Court of Common Pleas of York

County, following his conviction of second-degree murder, third-degree

murder, and burglary1 for the stabbing death of Nakia Williams. We affirm.

The victim was the new paramour of Olga Cuadra, the mother of

Appellant’s three children. Cuadra and the victim lived with the children in a

second floor apartment located at 412 South Pershing Avenue in York,

Pennsylvania. See N.T., Trial, 1/13-15/14 at 129. On the evening of January

30, 2013, Appellant arrived at the victim’s home to drop off money and

cigarettes, but Cuadra did not let him in. See id. at 149-150. At

approximately 4:15 a.m. the following morning, Cuadra and the victim were

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1

18 Pa.C.S.A. §§ 2502(b), 2502(c) and 3502(a)(1), respectively.

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sleeping in their bed when the victim suddenly sat up and told Cuadra to call

the police and an ambulance. See id. at 131-132. The victim then fell back

on the bed bleeding. See id. at 132. Cuadra’s seven-year-old son, who was

asleep in the next room, awoke to see his stepfather, the Appellant, running

down the stairs. See id. at 134. Cuadra relayed this information to the 911

operator. See id.

When police arrived at the residence, they observed that the door to

the second floor entrance off the rear balcony was ajar and a rear window

was pushed in to make entry. See id. at 105-106. The victim, who was lying

on the bed in a large pool of blood, was deceased. See id. at 106-107. The

following day, a high school student discovered a bloody steak knife in an

alleyway off Pershing Avenue and informed police. See id. at 158-160. A

DNA analysis of the blood on the knife blade matched that of the victim. See

id. at 218-219.

Based upon Detective Anthony Fetrow’s interviews with Cuadra and

her son on the morning of the murder, Appellant was taken into custody at

his place of work and read his Miranda2 rights. See id. at 234-237. During

a subsequent custodial interview, before which Detective Fetrow again

apprised Appellant of his Miranda warnings, Appellant admitted that he

broke into Cuadra’s home and murdered the victim in a “blind rage.”

Transcript of Recorded Interview, 1/31/13 at 4-5, 40.

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2

Miranda v. Arizona, 384 U.S. 436 (1966).

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Appellant was subsequently charged with one count each of first-

degree murder, second-degree murder, third-degree murder, and Burglary.

Prior to trial, Appellant filed a motion to suppress his statements to police,

which the trial court denied following an evidentiary hearing. Appellant filed

a motion to proceed pro se. At a hearing on the matter, the trial court

granted Appellant’s motion and appointed Bruce Blocher, Esquire, as

standby counsel. At a later hearing, the court denied Appellant’s pro se oral

motion to suppress evidence based on an unlawful warrantless arrest and a

motion seeking the trial court’s recusal.

At the start of trial, Appellant sought to admit into evidence the

entirety of his videotaped statement to police, including discussions

regarding possible sentencing options and alleged offers of leniency in

exchange for Appellant’s cooperation, which had been previously redacted

by agreement of the parties. The trial court denied Appellant’s pro se

request and ordered that those portions of the statement remain excluded

from evidence. Following jury selection, Appellant requested the assistance

of counsel and the court ordered Attorney Blocher to resume representation

of Appellant. The jury convicted Appellant of second-degree murder, third-

degree murder, and burglary. The trial court sentenced Appellant to an

aggregate term of life imprisonment.

Following Appellant’s conviction, the trial court permitted Attorney

Blocher to withdraw as counsel, and appointed William Graff, Jr., Esquire, as

new counsel. On October 7, 2014, Attorney Graff filed a petition for leave to

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file a nunc pro tunc appeal, which the trial court granted. This nunc pro tunc

appeal followed.

Appellant first challenges the sufficiency of the evidence of convictions

of second-degree murder and burglary.

As a general matter, our standard of review of sufficiency claims

requires that we evaluate the record in the light most favorable

to the verdict winner giving the prosecution the benefit of all

reasonable inferences to be drawn from the evidence. Evidence

will be deemed sufficient to support the verdict when it

establishes each material element of the crime charged and the

commission thereof by the accused, beyond a reasonable doubt.

Nevertheless, the Commonwealth need not establish guilt to a

mathematical certainty. [T]he facts and circumstances

established by the Commonwealth need not be absolutely

incompatible with the defendant’s innocence. Any doubt about

the defendant’s guilt is to be resolved by the fact finder unless

the evidence is so weak and inconclusive that, as a matter of

law, no probability of fact can be drawn from the combined

circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted). The factfinder, 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. See Commonwealth v. Valentine, 101 A.3d

801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).

Furthermore, the Commonwealth may sustain its burden by means of wholly

circumstantial evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877

(Pa. 2008).

Murder of the second degree is a criminal homicide “committed while a

defendant was engaged as a principal or an accomplice in the perpetration of

a felony.” 18 Pa.C.S.A. § 2502(b). The perpetration of a felony is defined as

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“[t]he act of the defendant in engaging in or being an accomplice in the

commission of, or an attempt to commit, or flight after committing, or

attempting to commit robbery, rape, or deviate sexual intercourse by force

or threat of force, arson, burglary or kidnapping.” 18 Pa.C.S.A. § 2502(d).

In this case, the underlying felony was burglary. “Under Pennsylvania

law the crime of burglary is defined as an unauthorized entry with the intent

to commit a crime after entry.” Commonwealth v. Alston, 651 A.2d 1092,

1094 (Pa. 1994) (citing 18 Pa.C.S.A. § 3502). The Commonwealth need not

allege or prove what particular crime the defendant intended to commit after

his forcible entry into a private residence, but rather, the intent to commit a

crime may be inferred from the totality of the circumstances. See id. at

1094-1095.

Appellant argues that there is no evidence to support a finding that he

intended to commit a crime when he entered the victim’s home. Appellant

concedes that he entered the victim’s home with the intent to see his

children, but maintains it was not his intent to kill the victim when he arrived

at the residence. See Appellant’s Brief at 14. Appellant instead claims that

when he saw the victim sleeping in the next room, he “lost it” and stabbed

the victim in a “blind rage.” Id.

The evidence presented at trial revealed that, on the evening prior to

the murder, Appellant was angry that Cuadra did not permit him to enter the

apartment. Early the following morning, Appellant stealthily entered the

victim’s home through a rear window—without the permission of Cuadra or

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the victim. Although Appellant now contends that he killed the victim in a

blind rage, he does not deny that he entered the residence with a knife in his

possession. Based on the attendant circumstances, the jury could have

reasonably inferred that Appellant entered the residence with the intent to

harm the victim or someone else therein. Although Appellant contends he

merely entered the residence to see his children, the jury was free to

disbelieve his statements.

Accordingly, because we conclude the evidence was sufficient to

support his conviction of burglary, we further find Appellant’s burglary

conviction was a sufficient predicate felony to support his conviction of

second-degree murder. Therefore, his challenge to the sufficiency of the

evidence fails.

Appellant next claims that the trial court should have suppressed his

statement to police as it was obtained after he asserted his constitutional

right to counsel. See Appellant’s Brief at 15.

Our standard of review in addressing a challenge to a trial

court’s denial of a suppression motion is limited to determining

whether the factual findings are supported by the record and

whether the legal conclusions drawn from those facts are

correct.

[W]e may consider only the evidence of the prosecution

and so much of the evidence for the defense as remains

uncontradicted when read in the context of the record as a

whole. Where the record supports the findings of the

suppression court, we are bound by those facts and may

reverse only if the court erred in reaching its legal

conclusions based upon the facts.

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Further, [i]t is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight

to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted).

“To safeguard an uncounseled individual’s Fifth Amendment privilege

against self-incrimination, suspects subject to custodial interrogation by law

enforcement officers must be warned that they have the right to remain

silent, that anything they say may be used against them in court, and that

they are entitled to the presence of an attorney.” In re R.H., 791 A.2d 331,

333 (Pa. 2002) (plurality); see also Miranda, 384 U.S. at 444-445. With

regard to the waiver of Miranda rights, this Court has explained that

Miranda holds that “[t]he defendant may waive effectuation” of

the rights conveyed in the warnings “provided the waiver is

made voluntarily, knowingly and intelligently.” The inquiry 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

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.

In the Interest of T.B., 11 A.3d 500, 505 (Pa. Super. 2010) (citation

omitted).

Our Supreme Court has provided that

an explicit statement of waiver ... after being advised of [one’s]

Miranda rights ... is not necessary to a finding of waiver under

the Fifth Amendment. The pertinent question is whether the

defendant in fact knowingly and voluntarily waived the rights

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delineated in the Miranda case. Waiver can be clearly inferred

from the actions and words of the person interrogated.

Commonwealth v. Bomar, 826 A.2d 831, 843 (Pa. 2003) (internal

citations and quotes omitted).

The test for determining ... the validity of a waiver looks to the

totality of the circumstances. Some of the factors to be

considered include: the duration and means of interrogation; the

defendant's physical and psychological state; the conditions

attendant to the detention; 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.

Commonwealth v. DeJesus, 787 A.2d 394, 403 (Pa. 2001) (citations

omitted) (abrogated on other grounds).

With respect to the totality of the circumstances of the instant matter,

it is clear that Appellant was in custody. Detective Fetrow issued Miranda

warnings when the Appellant was taken into custody at his place of work the

morning of the murder. See N.T., Suppression Hearing, 9/10/13 at 19-20.

Detective Fetrow then asked Appellant if he understood his rights, and

Appellant responded that he did. See id. at 20. After Appellant was

transported to the station for questioning, he was permitted to speak with

his father, Roger Lookingbill, for approximately 20 minutes. See id. at 22.

Detective Fetrow testified that after their meeting, Appellant’s father asked

him whether Appellant should retain an attorney. See id. at 22. Detective

Fetrow responded that it was Appellant’s decision whether to retain an

attorney. See id. at 25. When Detective Fetrow then asked Appellant

whether he wished to continue to cooperate with the investigation, Appellant

responded in the affirmative. See id. at 25.

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The transcript of the interview indicates that Detective Fetrow again

issued Miranda warnings to the Appellant prior to questioning and asked

whether Appellant understood his rights. See Transcript of Recorded

Interview, 1/31/13 at 4-5. Appellant responded, “Yes,” and did not request

an attorney. See id. at 5. The interview then commenced for approximately

90 minutes, during which Appellant confessed to murdering the victim.

Appellant does not assert on appeal that he was coerced into waiving

his Miranda rights, but instead argues that he in fact did invoke his right to

have an attorney present. Appellant’s father testified at the suppression

hearing that after meeting with the Appellant at the police station, he

informed Detective Fetrow that his “son wants a lawyer.” N.T. Suppression

Hearing, 9/10/13 at 47. Roger Lookingbill further stated that he then asked

his son, “[r]ight, Josh[,]” and Appellant answered, “yes.” Id. at 48.

However, in denying Appellant’s suppression motion, the trial court clearly

did not find Roger Lookingbill’s testimony to be credible.

Appellant’s argument essentially asks that we override the suppression

court’s credibility determination. This we cannot do. See Houck, 102 A.3d

at 455 (“It is within the suppression court’s sole province as factfinder to

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

testimony.”).

Significantly, this Court has held that “after a defendant is given his or

her Miranda rights, a statement by the defendant that he understands

those rights followed by the answering of questions posed by the

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interrogating officer constitutes a sufficient manifestation of a defendant’s

intent to waive those rights so as to satisfy state constitutional protections.”

Commonwealth v. Baez, 21 A.3d 1280, 1286 (Pa. Super. 2011) (footnote

omitted). In light of the fact that Appellant verbally acknowledged that he

understood his Miranda rights on two occasions and did not request an

attorney during the entirety of the interview, we conclude that the trial court

did not err as a matter of law when it determined that Appellant’s custodial

statements were admissible.

Appellant next asserts that the Commonwealth failed to prove by a

preponderance of the evidence that his confession was made voluntarily.

See Appellant’s Brief at 26. Following the denial of his pre-trial suppression

motion, Appellant again contested the voluntariness of his confession at trial.

“Despite a pretrial ruling that a confession is voluntary, … a criminal

defendant nonetheless is entitled to a second opportunity to test the

voluntariness of his statement by introducing evidence at trial relating to

voluntariness and have the jury consider the question.” Commonwealth v.

Cameron, 780 A.2d 688, 693 (Pa. Super. 2001) (citations omitted); see

also Pa.R.Crim.P. 581(J) and Comment. When a defendant alleges that his

confession was involuntary, 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.” Commonwealth v.

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Templin, 795 A.2d 959, 966 (Pa. 2002) (citation omitted). When assessing

the voluntariness pursuant to the totality of the circumstances, we examine

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.

Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (citation

omitted). The Commonwealth must prove by a preponderance of the

evidence that the defendant confessed voluntarily. See id.

In support of his claim, Appellant reiterates the argument that he

invoked his Miranda rights when he acknowledged his father’s alleged

statement to police that his son wanted an attorney. See Appellant’s Brief at

29-30. We have already addressed this argument. The Commonwealth

presented evidence that Appellant was twice issued Miranda warnings,

acknowledged his understanding of those rights both times, and did not

request an attorney prior to or during the interview.

When weighing conflicting testimony, the jury is free to believe all,

part or none of the evidence and to determine the credibility of the

witnesses. See Commonwealth v. Orie, 88 A.3d 983, 1017 (Pa. Super.

2014). The jury clearly disregarded Roger Lookingbill’s testimony. As

previously noted, we are satisfied that Appellant’s acknowledged

understanding of his Miranda rights and his willingness to thereafter answer

Detective Fetrow’s questions constituted sufficient manifestation of

Appellant’s intent to waive those rights. See Baez. Accordingly, we find the

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Commonwealth sufficiently established the voluntariness of Appellant’s

confession by a preponderance of the evidence.

In his fourth issue on appeal, Appellant argues that the trial court

erred when it refused to admit into evidence the unredacted video of the

police interrogation. “[T]he admission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the

trial court clearly abused its discretion.” Commonwealth v. Fransen, 42

A.3d 1100, 1106 (Pa. Super. 2012) (internal citations omitted).

Immediately prior to trial, Appellant requested that the court permit

the jury to view the interrogation video in its entirety, including parts in

which Detective Fetrow allegedly discussed his close friendship with the

District Attorney’s office and the possible offenses and sentencing terms

Appellant might face. See N.T., Trial, 1/13/14 at 6-14. Upon consideration

of Appellant’s motion, the trial court ultimately ruled that Appellant could

question Detective Fetrow regarding his expression of friendship with the

district attorney’s office prior to the second reading of Appellant’s Miranda

rights, but that Appellant could not raise the issues of possible sentences

discussed during the course of the interrogation. See id. at 14.

Appellant claims that the admission of the redacted portions of the

video would have revealed coercive police interrogation tactics relevant to

the jury’s determination of the voluntariness of his Miranda waiver and

subsequent confession. See Appellant’s Brief at 36. Even if we were to agree

that the trial court’s decision to preclude the admission of the unredacted

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interrogation video into evidence was in error, we would find such error

harmless. See Commonwealth v. Marshall, 824 A.2d 323, 328 (Pa.

Super. 2003) (an error is harmless if the court determines that the error

could not have contributed to the verdict). Based upon the totality of the

circumstances surrounding Appellant’s interrogation, we are satisfied, as

noted previously, that Appellant’s waiver of his Miranda rights and his

ensuing confession were voluntary.3 See Nester.

Appellant next argues that the trial court should have suppressed his

confession because the police lacked probable cause to conduct a

warrantless arrest. “To be constitutionally valid, a warrantless arrest must

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3

Although we are indeed troubled by Detective Fetrow’s implication that

Appellant’s cooperation might result in mitigation of the charges against him,

see Transcript of Recorded Interview, 1/31/13 at 7, we note that this

comment was made after the detective stated that he could make no

promises to induce Appellant’s cooperation, see id. at 6. Further, we find it

important that this statement was also made after Appellant was apprised of

his Miranda rights, including the right to remain silent and right to counsel,

and before any substantive questioning began.

The fact that warnings were given is an important factor tending

in the direction of a voluntariness finding. This fact is important

in two respects. It bears on the coerciveness of the

circumstances, for it reveals that the police were aware of the

suspect's rights and presumably prepared to honor them. And

.... it bears upon the defendant’s susceptibility, for it shows that

the defendant was aware that he had a right not to talk to the

police.

Templin, 795 A.2d at 966 (citing W.R. LaFave et al., Criminal Procedure, §

6.2(c), at 460).

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be supported by probable cause.” Commonwealth v. Agnew, 600 A.2d

1265, 1271 (Pa. Super. 1991) (citation omitted).

Probable cause is made out when the facts and circumstances

which are within the knowledge of the officer at the time of the

arrest, and of which he has reasonably trustworthy information,

are sufficient to warrant a man of reasonable caution in the

belief that the suspect has committed or is committing a crime.

The question we ask is not whether the officer’s belief was

correct or more likely true than false. Rather, we require only a

probability, and not a prima facie showing, of criminal activity. In

determining whether probable cause exists, we apply a totality

of the circumstances test.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (emphasis

omitted) (citation omitted). “When an officer makes an unlawful arrest, any

evidence seized during a search incident to the arrest must be suppressed.”

Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999) (citation

omitted).

Here, Appellant’s stepson informed police that he observed Appellant

running down the steps of the family’s residence immediately after the

victim was stabbed. The fact that Appellant was observed fleeing directly

from the scene of the murder was surely sufficient to justify a reasonable

belief that he was the perpetrator of the murder. Accordingly, because there

was probable cause to believe that Appellant was responsible for the victim’s

murder, his warrantless arrest was lawful and Appellant's argument that his

confession was the result of an illegal seizure is without merit.

Lastly, Appellant contends that the trial court abused its discretion in

denying his pre-sentence motion to recuse.

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Our standard of review of a trial court’s determination not to

recuse from hearing a case is exceptionally deferential. We

recognize that our trial judges are honorable, fair and

competent, and although we employ an abuse of discretion

standard, we do so recognizing that the judge himself is best

qualified to gauge his ability to preside impartially.

The party who asserts that a trial judge should recuse

bears the burden of setting forth specific evidence of bias,

prejudice, or unfairness. Furthermore, a decision by the

trial court against whom the plea of prejudice is made will

not be disturbed absent an abuse of discretion.

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009)

(citations and internal quotation marks omitted).

Appellant contends that the trial court’s “pattern of biased and hostile

comments” during pre-trial hearings demonstrated the court’s prejudice.

Appellant’s Brief at 44. Our review of the record reveals that Appellant

requested the trial court’s recusal after the court denied his oral pro se

motion to suppress his confession as the result of an illegal arrest. See N.T.,

Pre-Trial Hearing, 1/10/14 at 34-35. During the presentation of this motion,

Appellant repeatedly interrupted and challenged the trial court. See id. at

27-37. Although Appellant contends that the trial court grew “exasperated”

with Appellant’s intransigence, exasperation falls far short of proof of bias.

Not establishing bias or partiality … are expressions of

impatience, dissatisfaction, annoyance, and even anger, that are

within the bounds of what imperfect men and women, even after

having been confirmed as [ ] judges, sometimes display. A

judge’s ordinary efforts at courtroom administration—even a

stern and short-tempered judge’s ordinary efforts at courtroom

administration—remain immune.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014) (citing

Liteky v. United States, 51 U.S. 540) (emphasis omitted).

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The trial court here exhibited remarkable patience in the face of

Appellant’s obstreperous courtroom conduct. Despite Appellant’s efforts to

manufacture the appearance of impropriety, we find no evidence that the

trial court exhibited bias, prejudice or unfairness during the entirety of the

proceedings. We therefore find the trial court did not abuse its discretion in

denying Appellant’s motion to recuse.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/2/2016

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