J-S21006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARYL T. HAYDEN                            :
                                               :
                       Appellant               :   No. 106 WDA 2019

       Appeal from the Judgment of Sentence Entered September 6, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0008106-2017

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARYL T. HAYDEN                            :
                                               :
                       Appellant               :   No. 108 WDA 2019

       Appeal from the Judgment of Sentence Entered September 6, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0008105-2017


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 08, 2020

       Daryl T. Hayden appeals from the judgment of sentence,1 entered in the

Court of Common Pleas of Allegheny County, following his convictions for one


____________________________________________


1By filing two separate notices of appeal with one lower docket number on
each notice, Hayden has complied with the dictates of Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), which held that “where a single order
J-S21006-20



count of rape,2 three counts of involuntary deviate sexual intercourse by

forcible compulsion (IDSI),3 one count of attempted IDSI,4 and two counts

each of sexual assault—serious bodily injury,5 indecent assault—forcible

compulsion,6 aggravated assault,7 strangulation in connection with sexual

violence,8 terroristic threats,9 and possession of an instrument of crime

(PIC).10 Upon careful review, we affirm.

        Hayden’s convictions arise from two separate incidents that occurred in

June of 2017.11 The trial court set forth the relevant facts, in part, as follows:



____________________________________________


resolves issues arising on more than one docket, separate notices of appeal
must be filed for each of those cases.” Id. at 977. See also Pa.R.A.P. 341(a).
2   18 Pa.C.S.A. § 3121(a)(1).

3   18 Pa.C.S.A. § 3123(a)(1).

4   Id.; 18 Pa.C.S.A. § 901(a).

5   18 Pa.C.S.A. § 3124.1.

6   18 Pa.C.S.A. § 3126(a)(1).

7   18 Pa.C.S.A. § 2702(a)(1).

8   18 Pa.C.S.A. § 2718(a)(1).

9   18 Pa.C.S.A. § 2706(a)(1).

10   18 Pa.C.S.A. § 907(a).

11Hayden was charged at CC Nos. 201708105 and 201708106 in connection
with his assaults against M.D. and L.H., respectively. The cases were
consolidated for trial before the Honorable Mark Tranquilli. See N.T. Trial,
6/6/18, Vols. 1 and 2.

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       In the early morning hours on June 10, 2017, victim M.D.
       encountered [Hayden] while walking on Frankstown Avenue in the
       area of Homewood. The two had never met before and engaged
       in a conversation wherein [Hayden] agreed to give [M.D.] crack
       cocaine in exchange for sex. [Hayden] initially suggested [they
       go to] his Mother’s house, or someone by the name of “Mama
       Jean[,]” as they walked in search of a location. They eventually
       settled on the football field located behind Westinghouse High
       School. [M.D.]’s testimony was uncontradicted by [Hayden] up to
       this point.

       [M.D.] testified that once at the football field[, Hayden] offered
       her a piece of crack; she tasted it by putting it to her tongue and
       determined that it was fake. She rejected the crack and began
       walking away when [Hayden] grabbed her from behind by placing
       his arm around her throat, choking her, while simultaneously
       bringing her to her knees. [Hayden] positioned himself on top of
       [M.D.] and repeatedly punched her [in] the head upwards of
       fifteen (15) to twenty (20) times. M.D. recalled her nose hurt and
       that she was choking on blood when [Hayden] displayed a box
       cutter, threatening to kill her with it. She testified that she was
       in fear for her life and grabbed for what she thought was a stick
       and began swinging it at [Hayden]. He continued to strangle her,
       and with the box cutter in hand, ordered [M.D.] to strip naked.
       She complied and[,] at his direction, stood up and walked over to
       the corner of the building where he forced her to perform oral sex.
       [Hayden] then removed his penis from her mouth, retrieved a
       condom from her purse[,] and ordered her to put the condom on
       him using her mouth. He then forced her to perform oral sex a
       second time. M.D. testified that she was then made to stand up,
       bend over, and was raped anally by [Hayden]. M.D. did not
       consent to any of the sexual acts. [Hayden] told her to get
       dressed and while in considerable pain, she managed to put on
       some clothes, grab her belongings[,] and walk to a nearby house
       for help.[12]    That homeowner called police and M.D. was
       transported to a nearby hospital by ambulance where she was
       treated for five (5) days for a blood clot on her brain, concussion,


____________________________________________


12 The homeowner, Jenee Johnson, testified that she encountered M.D.
banging on her front door early that morning, bleeding from her face, nose,
and mouth, repeatedly stating that she had been beaten up and raped. N.T.
Trial, 6/6/18, Vol. bcisneros@example.net.

                                           -3-
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       broken nose, and bruising to the right side of her face and eyes,
       which were swollen shut.

       Alternatively, [Hayden] testified to the events at the football field
       as consensual sex. He disputed [M.D.]’s testimony that she
       rejected the crack because it [] was fake, informing the jury that
       M.D. in fact smoked the drugs with her own crack pipe. [Hayden]
       continued to counter M.D.’s testimony by contending that she
       removed her own clothes and willingly participated in sex. He
       explained to the jury that it was only after [M.D.] asked for
       money, despite their “agreement,” that he protected himself by
       slapping her several times in the face with an open hand.

       An eerily similar set [of] events played out eleven (11) days later
       during the early morning hours on June 21, 2017, when a second
       victim, L.H., encountered [Hayden] on Frankstown Avenue in
       Homewood.[13]      L.H. testified that she was six (6) months
       pregnant and was walking to a friend’s house when [Hayden], who
       she had never met before, approached her asking for a cigarette.
       She described to the jury that while walking, [Hayden] asked her
       if she wanted to go to his house, only to tell L.H. a short time later
       that they couldn’t because [another woman] was home. When
       asked why she was with [Hayden], L.H. explained that [Hayden]
       wanted to talk, but she could not recall what they discussed. They
       eventually reached the top steps that lead down to the football
       field behind Westinghouse High School. It is at this time that
       [Hayden] asked [L.H.] where they were going to have sex. L.H.
       refused, telling the jury that she was six (6) months pregnant and
       that having sex was “not the plan.” L.H. described how [Hayden]
       then put his arm around her neck and dragged her backwards
       down the steps onto the field. While choking her, [Hayden]
       removed her head scarf, one shoe, and pant leg and made [L.H.]
       retrieve a condom from her purse. [Hayden] put the condom on
       himself and attempted vaginal sex. L.H. resisted, broke free[,]
       and ran, screaming and crying for help[14] away from the dark field
____________________________________________


13 Neither M.D. nor L.H. knew each other when the assaults occurred. N.T.
Trial, 6/6/18, Vol. 1 at 131; N.T. Trial, 6/6/18, Vol. bcisneros@example.net.

14Darren Holmes, who lived close to Westinghouse High School, testified that
he heard a woman yelling for help during the early hours of June 21; at first,
he ignored it, but called 911 after the screaming continued and he heard “the
fear in her voice.” N.T. Trial, 6/6/18, Vol. bcisneros@example.net.

                                           -4-
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       and toward the steps, which were lit. [Hayden], for the second
       time, grabbed [L.H.] around her throat and dragged her down the
       steps back onto the unlit field. While continuing to drag her, he
       pulled out a box cutter and threatened to stab her if she kept
       screaming. In an effort to get her to stop screaming, [L.H.]
       testified that [Hayden] would choke her to the point where she
       couldn’t breathe, or hit her. After he dragged her deeper into the
       football field, he removed her other shoe and her pants
       completely. [Hayden] attempted to anally rape her, telling [L.H.]
       she was “going to give it to me from the back.” Although he did
       not penetrate her anally, sometime during the struggle [Hayden]
       did penetrate her vaginally. L.H. did not consent to any sexual
       acts, including forced oral sex that she described while on cross
       examination. The assault ended when [Hayden] ran off after
       seeing flashlights at the top of the steps, which [turned out] to be
       the police responding to a 911 call for a woman screaming.[15]

       [Hayden] offered the jury a different version regarding his
       interaction with L.H. He testified that he encountered [L.H.] on
       Frankstown Avenue and asked her for a cigarette after which the
       two talked about getting high. [Hayden] could see that she was
       pregnant, remembering that he jokingly asked [L.H.] if she
       “swallowed a basketball.” All the while, he contends, [L.H.] denied
       she was pregnant. [Hayden] testified that L.H. purchased crack
       with money [he] had given her and that she offered to do
       “something” for it, meaning exchange sex for drugs. He stated
       that they went to Westinghouse High School at his suggestion
       after the house he was considering going to with L.H. did not pan
       out. Contrary to L.H.’s testimony, [Hayden] told the jury that she
       walked willingly down to the field[] and appeared to smoke the
       crack he gave her, yet in apparent conflict with his own testimony,
       maintained that she ran off after he handed her the drugs.
       According to [Hayden], despite running off, L.H. freely came back
       to the field after he complained about her leaving without him
       getting his half of the bargain, later adding that he grabbed her
       by the arm. He testified that after [L.H.] rejoined him on the
       football field[,] they engaged in consensual sex, denying any type
       of physical assault. He explained that after hearing two (2) car
____________________________________________


15 L.H. was treated at a nearby hospital for injuries, which included a facial
contusion, scratches on her neck, and bruising to her face and arms. N.T.
Trial, 6/6/18, Vol. 1 at 27-31, 67.


                                           -5-
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        doors close and seeing flashlights, he assumed the police were at
        the field and ran off because he had crack cocaine on his person.

Trial Court Opinion, 1/2/19, at 3-7.

        On June 22, 2017, the day following L.H.’s assault, three Pittsburgh

police officers located Hayden at an address in the Homewood area and

approached him, explaining that they had a search warrant for his DNA in

connection with a rape investigation. N.T. Suppression Hearing, 10/23/17, at

6-10. When asked whether Hayden preferred the police take his DNA in front

of the house or at the police station, he responded that he wanted to go to

the station “to talk more about what this was all about.” Id. at 10. At police

headquarters,      Detective    Colleen        Burst   and   Sergeant   William   Fleske

interviewed Hayden after reciting him his Miranda16 rights; the interview,

which was videotaped, was ultimately played for the jury. Id. at 40-42.

Hayden filed a pre-trial motion to suppress the statements he made to police,

arguing that they were given in violation of his Fifth Amendment right to

counsel, which the court denied after a hearing on October 24, 2017. Id.

        On June 6, 2018, Hayden proceeded to a jury trial where he was found

guilty of the above-stated crimes. On September 6, 2018, the trial court, with

the benefit of a pre-sentence investigation (PSI) report, imposed an aggregate


____________________________________________


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




                                           -6-
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sentence of 77½ to 143 years imprisonment: 30½ to 61 years in connection

with the assault on M.D., and 41-82 years in connection with the assault on

L.H, to run consecutively.17 Hayden timely filed a post-sentence motion pro

se which was amended by appointed counsel on December 13, 2018. The

trial court denied the motion on December 14, 2018. Hayden timely filed a

notice of appeal18 and court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. He raises the following issues for our review:

       1. Whether the convictions for [r]ape and associated charges
          were against the weight of the evidence where [Hayden]
          credibly testified that the encounter[s] [were] consensual?

       2. Whether the trial court abused its discretion by imposing an
          aggregate sentence of not less than 71.5 nor more than 1[4]3
          years of incarceration where sentence was imposed at each
          count of each information consecutively without support from
          the record?

____________________________________________


17 At CC No. 201708105, the court imposed a sentence of imprisonment of 8½
to 17 years for aggravated assault, 6-12 years for strangulation, 9-18 years
for two counts of IDSI, 2-4 years for indecent assault, 1-2 years for terroristic
threats, and 1-2 years for PIC; the sexual assault conviction merged for
sentencing purposes. Order, 9/6/18; see also N.T. Sentencing, 9/6/18, at
24-26. At CC No. 201708106, the court sentenced Hayden to 7-14 years for
aggravated assault, 6-12 years for strangulation, 9-18 years for rape, 8-16
years for criminal attempt (IDSI), 9-18 years for IDSI, 1-2 years for terroristic
threats, 1-2 years for PIC; the sexual assault and indecent assault convictions
merged for sentencing purposes. See id. at 26-28. The sentencing judge
informed Hayden that he imposed sentences “smack dab in the middle of the
standard range” for each crime. Id. at 28.

18On August 22, 2019, this Court sua sponte consolidated Hayden’s separate
appeals from each docket number in accordance with Pa.R.A.P. 513. Order,
7/22/19.




                                           -7-
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       3. Whether the [c]ourt erred in denying [Hayden]’s motion to
          suppress    statement[s] where    [Hayden]    clearly   and
          unambiguously requested counsel and detectives continued an
          interrogation?

Brief of Appellant, at 3.

       Hayden’s first issue challenges whether the guilty verdicts as to rape

and IDSI were against the weight of the evidence.19 Id. at 14-15.    He

maintains that he is entitled to a new trial because the guilty verdicts shock

one’s sense of justice, given that his testimony was more “believable” and

“logical” than that of M.D. or L.H. Id. at 16-20; see also Commonwealth

v. Champney, 832 A.2d 403, 408 (Pa. 2003) (when challenging weight of



____________________________________________


19 Although Hayden purports to challenge only the weight of the evidence in
his statement of questions involved, he improperly conflates this claim with a
challenge to the sufficiency of the evidence in the argument section of his
brief: he begins his argument by stating that he challenges “the sufficiency
of the evidence presented during [] trial to sustain his rape conviction” before
discussing the standard of review for a weight claim. See Brief of Appellant,
at 14. He further submits that the Commonwealth “failed to present evidence
that the sexual intercourse . . . involving [Hayden] and [M.D.] and [L.H.] []
was nonconsensual,” before listing the elements of rape and IDSI (including
lack of consent). Id. at 14-15. See Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. Super. 2000) (sufficiency and weight challenges are distinct
legal claims that entitle successful appellants to different relief); see also
Commonwealth v. Richard, 150 A.3d 504, 516 (Pa. Super. 2016) (weight
challenge concedes that Commonwealth produced sufficient evidence of each
element of crime “but questions which evidence is to be believed”). To the
extent Hayden seeks to challenge the sufficiency of the evidence, that
contention is waived based on his failure to preserve it in his Rule 1925(b)
statement. See Commonwealth v. Mattison, 82 A.3d 386, 393 (Pa. 2013)
(where sufficiency challenge not raised in Rule 1925(b) statement, it is
waived). Hayden preserved a weight of the evidence challenge by raising it
in his post-sentence motions. See Pa.R.Crim.P. 607. We address his weight
claim to the extent it can be discerned from his appellate brief.

                                           -8-
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evidence, new trial may be granted only where verdict shocks one’s sense of

justice).

       A motion for a new trial based on the claim that the verdict is against

the weight of the evidence is addressed to the discretion of the trial court.

Commonwealth v. Clay, 64 A.3d 1049, 1054 (Pa. 2013). It is not our role,

as a reviewing court, to reweigh the evidence and substitute our judgment for

that of the fact-finder. Commonwealth v. Mitchell, 902 A.2d 430, 449 (Pa.

2006).      Appellate review of a weight claim is a review of the exercise of

discretion, not the underlying question whether the verdict is against the

weight of the evidence. Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa.

2000).      An abuse of discretion is not merely an error in judgment; the

judgment must be “manifestly unreasonable or [] the law is not applied or []

the record shows that the action is a result of partiality, prejudice, bias[,] or

ill will.” Id.

       Moreover, when a weight challenge “is predicated on the credibility of

trial testimony, [appellate] review of the trial court’s decision is extremely

limited. Generally, unless the evidence is so unreliable and/or contradictory

as to make any verdict based thereon pure conjecture, these types of claims

are not cognizable on appellate review.” Commonwealth v. Bowen, 55 A.3d

1254, 1262 (Pa. Super. 2012).       Finally, we note that, “[b]ecause the trial

judge has had the opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the findings and reasons


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advanced by the trial judge when reviewing a trial court’s determination

[whether] the verdict is against the weight of the evidence.” Id.

       We conclude that the trial court did not abuse its discretion in denying

Hayden relief on his weight claim. The trial court considered Hayden’s claim

and deemed it to lack merit.20 See Trial Court Opinion, 1/2/19, at 9-11. We

agree.    As the trial court correctly noted, the jury’s choice not to believe

Hayden’s version of events was purely within its discretion.         Trial Court

Opinion, 1/2/19, at 10. It is well-settled that 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.” See Commonwealth v.

Adams, 882 A.2d 496, 499 (Pa. Super. 2005). The Commonwealth presented

overwhelming evidence of Hayden’s guilt, including testimony from M.D., L.H.,



____________________________________________


20The trial court determined that, in order to conclude that the verdicts were
against the weight of the evidence, it requires

       more than a finding that the victims were not credible. It calls for
       the complete disregard of the Commonwealth’s case:              the
       witnesses that called 911[,] the physical evidence at the scene[,]
       the observations by responding officers[,] the photographs[,] and
       the medical reports. It calls for one to ignore the predatory
       behavior reflected by the Commonwealth’s evidence: that these
       encounters occurred at the same time of day, at the same
       location[,] under the same circumstances[,] involving the use of
       a sharp weapon, a mere eleven (11) days apart. After a thorough
       review of the record, the [c]ourt does not find that the verdicts
       are so contrary to the evidence as to shock one’s sense of justice
       and make an award of a new trial imperative.

Trial Court Opinion, 1/2/19, at 10-11.

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and responding officers, medical records, and photographs corroborating the

vicious attacks both victims endured.           The fact that Hayden presented a

different version of events than M.D. and L.H. does not require a finding that

the verdict was against the weight of the evidence.               Commonwealth v.

Meachum, 711 A.2d 1029, 1035 (Pa. Super. 1998).                   “The jury found the

Commonwealth’s evidence to be credible, and we will not disturb this finding

on appeal.” Id.

         Next, Hayden claims that the sentencing court abused its discretion and

imposed a manifestly excessive sentence.             Brief of Appellant, at 3.      This

represents a challenge to the discretionary aspects of his sentence.

Commonwealth v. Prestidge, 539 A.2d 439, 441 (Pa. Super. 1988). An

appeal raising the discretionary aspects of sentencing is not guaranteed of

right;    rather   it   is   considered   a   petition   for   permission   to   appeal.

Commonwealth v. Williams, 562 A.2d 1385, 1368-87 (Pa. Super. 1989)

(en banc). In order to reach the merits of a discretionary aspects claim, we

must engage in a four-part analysis to determine:

         (1) whether appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
         has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
         substantial question that the sentence appealed from is not
         appropriate under the Sentencing Code.

                                      ***

         The determination of what constitutes a substantial question must
         be evaluated on a case-by-case basis. A substantial question

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      exists only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.

Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (citations

and quotations omitted).

      Here, Hayden has filed a timely notice of appeal and complied with Rule

2119(f) by including a statement of the reasons relied on for allowance of

appeal. Specifically, he raises two claims: first, that the trial court abused its

discretion by sentencing him “without due or meaningful consideration of the

statutory factors of 42 Pa.C.S.A. § 9721(b),” and second, that the court

imposed a manifestly excessive sentence by imposing consecutive sentences

at each count of the criminal information. Brief of Appellant, at 13. See also

42 Pa.C.S.A. § 9721(b) (court shall consider defendant’s rehabilitative needs

and protection of the public in imposing sentence). Hayden’s first claim would

normally present a substantial question. See Commonwealth v. Derry, 150

A.3d 987, 995 (Pa. Super. 2016) (failure to consider section 9721(b) factors

raises substantial question). However, Hayden failed to preserve this claim at

sentencing or in his post-sentence motion to reconsider or modify sentence.

See N.T. Sentencing, 9/6/18; Post Sentence Motions, 9/26/18. Accordingly,

this claim is waived. Griffin, supra.

      Regarding Hayden’s second claim, this Court has consistently held that

“excessiveness claims premised on an imposition of consecutive sentences do

not raise a substantial question for our review.” See, e.g., Commonwealth

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v. Radecki, 180 A.3d 441, 468 (citing supporting caselaw).           Therefore,

Hayden is not permitted to appeal on these grounds. Griffin, supra.

      Finally, Hayden contends that the trial court erred in denying his motion

to suppress statements he made to Detective Burst, where police continued

interrogating him after a clear and unambiguous request for counsel. Brief of

Appellant, at 3.

      Our standard of review in addressing 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.   Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court's legal conclusions are erroneous.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation omitted).

      The law surrounding a defendant’s constitutional right to counsel is well-

settled:   “where an individual states that he wants an attorney, the

interrogation must cease until an attorney is present.” Commonwealth v.

Kunkle, 79 A.3d 1173, 1183 (Pa. Super. 2013). However, if a statement

regarding the right to counsel is “ambiguous or equivocal, the police are not

required to end the interrogation, nor are they required to ask questions

designed to clarify whether the suspect is invoking his Miranda rights.”

Commonwealth v. Frein, 206 A.3d 1049, 1065 (Pa. 2019).




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     Here, the record fully supports the trial court’s denial of Hayden’s

suppression motion. When police approached Hayden in connection with their

investigation, Hayden asked that his DNA be taken at police headquarters

because he wanted to talk more about the accusations against him.       N.T.

Suppression Hearing, 10/23/17, at 7-13. At the beginning of the interview,

when Hayden began speaking, Sergeant Fleske interrupted him and told him

that he had to be informed of his Miranda rights.     Interview Transcript,

7/22/17, at 7-8.   After reciting them to Hayden, the following exchange

occurred:

     Detective Burst:     If you exercise the right not to answer,
     questioning will stop. Do you understand that?

     [Hayden]: Yes.

     Detective Burst: Okay. Knowing these rights, are you willing to
     waive your rights and talk to us without a lawyer?

     [Hayden]: I would rather talk to a lawyer but I really want
     to know – two women said that I sexually assaulted them?

     Detective Burst: Yeah, and that’s what we want to talk about.
     And at any time you can just say, no, I don’t want to answer any
     further questions.

                                   ***

     Detective Burst:  We just want to hear your side of what
     happened, you know what I mean?

     [Hayden]: Oh, okay.

     Detective Burst: Are you willing to do that?

     [Hayden]: Yeah.


                                  - 14 -
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                                          ***

       Sergeant Fleske: Okay. Whenever you want to stop, you say stop
       and we’ll be done.

       [Hayden]: Okay.

Id. at 10-14 (emphasis added).21

       Hayden contends simply that he “indicated that he wished to speak with

an attorney,” and the detectives ignored his request in violation of his right to

counsel. Brief of Appellant, at 27. However, a review of the precise words

Hayden used during questioning, as well as the attendant circumstances, fully

supports the suppression court’s conclusion that his request for counsel was

“at best ambiguous and equivocal.” Suppression Court’s Findings of Fact and

Legal Conclusions, 4/9/18, at 32. In Davis v. United States, 512 U.S. 452

(1994), the United States Supreme Court held that the defendant’s statement

that, “Maybe I should get a lawyer,” during police interrogation did not

constitute a clear and unambiguous request for counsel.        Id. at 462. The

Court further concluded that police may “continue questioning until and unless

the suspect clearly requests an attorney.” Id. at 459.

       Here, after Hayden volunteered to go to police headquarters to talk

about the rape allegations against him, he was Mirandized and specifically

asked whether he was willing to continue the interview. His statement that


____________________________________________


21Detective Burst also testified at the suppression hearing that Hayden “never
said he wanted an attorney,” and, if he had done so, the conversation would
have ended. N.T. Suppression Hearing, 10/23/17, at 60-61.

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he “would rather talk to a lawyer but really want[s] to know” about the

content of those allegations is a far cry from a clear and unambiguous request

for counsel. Davis, supra; see also Commonwealth v. Martin, 101 A.3d

706, 726 (Pa. 2014) (defendant “did not actually request an attorney” by

stating he “might be invoking the right to counsel” before continuing

conversation immediately). Thus, the police were not required to cease their

questioning, and the court properly denied Hayden’s suppression motion.

Frein, supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/08/2020




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