Commonwealth v. Smith

210 A.3d 1050

COMMONWEALTH of Pennsylvania

v.Brandon SMITH, Appellant

No. 3573 EDA 2017

Superior Court of Pennsylvania.

Argued January 9, 2019

Filed May 14, 2019

Karl D. Schwartz, Elkins Park, for appellant.

Michael L. Erlich, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:

Brandon Smith appeals from the judgment of sentence entered following his jury trial convictions for second-degree murder, robbery, and related offenses.¹ Smith argues that the court erred in denying his motion to suppress his statement to the police and in sentencing him to a mandatory minimum sentence of 30 years' incarceration. We affirm.

Just before 8:30 p.m. on March 12, 2015, James Stuhlman was shot and killed while he was walking his dog. Six days later, on March 18, 2015, police arrested Smith, who was 15 years old at the time, and took him to the homicide unit for questioning. Smith made a statement in which he confessed that he, Alston Zou-Rutherford, and Tyfine Hamilton had planned to commit a robbery and split the proceeds. They walked around for 20 minutes while looking for someone to rob. Hamilton had a firearm. When they saw Stuhlman, they decided to rob him, because "even the dog looked weak and small." Statement, 3/18/15, at 2. Smith and Hamilton approached Stuhlman while Zou-Rutherford stood behind as a lookout. Hamilton instructed Stuhlman to give them his belongings, and Smith instructed him to put his belongings on the ground. When Stuhlman reached for Hamilton's gun, Hamilton shot him.

The police filed charges against Smith. Prior to trial, Smith moved to suppress his statement. The testimony presented at the suppression hearing was as follows.

Detective Thomas Gaul testified that Smith was arrested at approximately 6:30 p.m., and Detective Gaul met him approximately three hours later, around 9:25 or 9:30 p.m. By that time, other law enforcement officers had already questioned Smith's brother, Zou-Rutherford. Zou-Rutherford had confessed that both he and Smith were involved in the shooting, and Detective Gaul had learned the substance of Zou-Rutherford's confession.

Detective Gaul initially spoke with Smith for approximately ten or 15 minutes, during which time he introduced himself and told Smith he was a suspect in the shooting. Shortly thereafter, Detective Gaul attempted to contact Victoria Zou, Smith's legal guardian, who Smith refers to as his mother. He left her a voicemail message.

Detective Gaul then read Smith his Miranda² rights, and Smith completed, initialed, and signed a form reflecting that he was waiving his Miranda rights. The form, which was introduced into evidence at the hearing, stated that the police were questioning Smith in relation to a murder/robbery. Detective Gaul testified that Sergeant Robert Wilkins was also present during the administration of the Miranda warnings.

Detective Gaul testified that four or five minutes after he left Zou a voicemail, she returned his call and spoke with Detective Thorsten Lucke. Detective Lucke thereafter communicated to Detective Gaul that Zou had given her permission for the detectives to question Smith.

Detective Gaul testified that after Smith waived his Miranda rights, he and Smith had a discussion wherein Smith confessed to his involvement in the shooting. Detective Gaul stated that Sergeant Wilkins and Detective Lucke were also present during the questioning, intermittently.

Detective Gaul testified that he did not promise Smith anything in exchange for his cooperation or tell Smith that he would be permitted to go home if he made a statement. Detective Gaul stated he told Smith that his involvement in a murder could potentially result in life imprisonment. Detective Gaul claimed he encouraged Smith to cooperate by telling him the following:

[Y]ou know all of the people that have been brought in within these last few hours and if you are confident enough if they are going to be able to stand all this pressure that is going on—because it is pressure—everyone is brought in, everything is coming together[.]

N.T., 4/18/17, at 173. Detective Gaul stated, "that is the only thing I laid upon him." Id.

Detective Gaul testified that Smith did not ask to speak with anyone the entire evening, and was "adamant" that he did not want a lawyer or Zou present. Id. at 168, 172. Detective Gaul testified that Smith "was very clear as to everything that was going on" and "[t]he whole time [he was] dealing with him, he understood clear and concise everything that was going on." Id. at 13-14, 170. Detective Gaul stated, "You could tell he knew exactly what he was doing." Id. at 168. Detective Gaul testified that Smith said he had prior experience within the criminal justice system, and that he had previously been detained for a robbery and that he gave a statement to the police after waiving his Miranda rights.

Detective Gaul testified that his discussion with Smith was reduced to a written statement in question and answer form beginning approximately four hours after Smith's arrest, at 10:20 p.m. The written statement was introduced as evidence at the hearing. In the statement, Smith confirmed that he was not under the influence of drugs, does not suffer from mental illness, and was given the opportunity to eat, drink, and use the bathroom. Smith acknowledged he was being interviewed in reference to the murder, that he understood his Miranda warnings, and that he understood Zou had given permission for him to be interviewed.

Smith signed the statement, and at 11:50 p.m., signed a form in which he consented to give a video-recorded statement. Detective Gaul testified that he and Detective Lucke made a video-recording of Smith's confession around 12:30 a.m. The prosecution played the video during the hearing. Detective Gaul testified that Smith's demeanor on the video was similar to his demeanor when they were preparing the written statement.

Detective Lucke testified that he spoke with Zou when she returned Detective Gaul's phone call, around ten or 15 minutes after Detective Gaul had left her a message. Detective Lucke said that he told Zou that Detective Gaul was "busy," but that he would take a message, and that "we had reached out to her in an effort to gain her permission to speak with Mr. Smith in reference to the ongoing investigation that he was at our office for." Id. at 184. Detective Lucke told Zou that they were investigating a murder that occurred during a robbery, and that Smith was one of several young men the police were talking to "in effort to determine everybody's involvement[.]" Id. at 185. Detective Lucke testified that he told Zou,

[W]hen Detective Gaul has a minute, when he is done speaking to your son, I can let him know he can call you or you can call here to speak with him later on and when your son is able, I would have him call you, if he desires to do so.

Id. at 194. According to Detective Lucke, Zou did not ask to speak to Smith, and gave the detectives her permission to question Smith. Detective Lucke testified that after the call was finished, he walked across the building to seek out Detective Gaul, and relayed to him that Zou had given her permission for the interview.

Detective Lucke testified that he did not put Zou on hold while he went to find Detective Gaul because he was not sure where Detective Gaul was, and he believed Detective Gaul could call Zou back again if necessary.

In addition to the testimony of Detectives Gaul and Lucke, the Commonwealth introduced, by stipulation, a statement made by Smith to the police in 2013 during an unrelated robbery investigation. The statement indicated that during that investigation, Zou had given the police permission to question Smith, and Smith had waived his Miranda rights.

Smith introduced, by stipulation, a psychologist's report showing that Smith's I.Q. on the Wechsler Abbreviated Scale of Intelligence ("WASI") test was 81, putting him the tenth percentile. That report also reflected that Smith's "cognitive abilities are somewhat lower than would be expected for the majority of the individuals in the population," and that Smith "performed mildly more poorly than would be expected for an average individual of his age and grade level." Id. at 203-04.

Zou testified that she was present when Smith was taken into custody, at a house where the police were executing a search warrant, and that at that time, she told Smith she would get him a lawyer. Zou testified that she called the police at 9:37 p.m. and spoke with a detective for seven minutes,³ mainly in order to locate Zou-Rutherford. Zou testified that the detective who answered told her Smith was with another detective, who would call her back. Zou testified that the police did not offer to let her speak to Smith. According to Zou, she did not tell the police they could not talk to Smith, but also did not give them permission to speak with him. Zou testified that she has an associate's degree in criminal justice, and understands Miranda rights.

Finally, Smith testified. He stated that he cried throughout the interview, had asked Detective Gaul if he could speak to a lawyer or to Zou, and that Detective Gaul told him he could go home if he cooperated. However, Smith also testified that he had understood his Miranda rights and wanted to waive them, and that no one had threatened him or forced him to make a statement. Smith testified that he would have waived his Miranda rights even if Zou had not given her permission to the detectives, because he had wanted to confess. Smith testified that he was being "hardheaded," because Zou had advised him to get an attorney. Id. at 266. Smith stated that when he was previously questioned, in relation to another robbery, he had told the truth about his involvement, and the detectives had released him. Smith believed if he came clean about his involvement in the instant case, he would receive similar treatment. Smith stated, "I...