Commonwealth v. Rushing

• Decision Date: 28 June 2013
• Citation: 2013 PA Super 162,71 A.3d 939
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Randal R. RUSHING, Appellant.
• Court: Pennsylvania Superior Court

71 A.3d 939

2013 PA Super 162

COMMONWEALTH of Pennsylvania, Appellee

v.Randal R. RUSHING, Appellant.

Superior Court of Pennsylvania.

Submitted April 2, 2012.

Filed June 28, 2013.

Robert M. Buttner, Scranton, for appellant.

Lisa A. Swift, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., BOWES, and STRASSBURGER,^* JJ.

OPINION BY BOWES, J.:

Randal R. Rushing appeals from the judgment of sentence of three consecutive life sentences plus forty-three years and nine months to eighty-seven years and six months incarceration imposed by the trial court. Appellant was convicted of three counts each of first-degree murder, second-degree murder, and third-degree murder in connection with the killings of three individuals. He also was adjudicated guilty of multiple counts of kidnapping and robbery, and one count of indecent assault. After careful review, we affirm each of Appellant's convictions for first-degree and third-degree murder as well as each count of robbery, and indecent assault. However, we reverse his convictions for kidnapping and second-degree murder and vacate Appellant's judgment of sentence as to the kidnapping convictions.¹

Appellant, on July 17, 2008, brutally attacked and killed Justin Berrios, Leslie Collier and Dustin Hintz at the Collier/Hintz home. Justin was twenty-years old, Leslie was sixteen, and Dustin was twenty-two. At the time, Appellant resided with Cynthia Collier, who was Leslie and Dustin's mother, and Wes Collier, who was Leslie's father and Dustin's stepfather. Also living in the home were nineteen-year-old Samantha Hintz, Appellant's former girlfriend and a sister to Leslie and Dustin, twenty-year-old Matthew Collier, the brother of two of the victims, and Tristan Berrios, the two-year-old son of Samantha. Justin Berrios was Samantha's former boyfriend and the father of her son. Justin was at the Collier/Hintz home at the time of the crimes.

After stabbing Justin to death, Appellant attacked Leslie, a male, between 4:00 and 4:30 a.m. Following the attack, Leslie managed to awaken his mother, Cynthia, and told her to call 911. According to Cynthia, Leslie was bleeding profusely and covered from his neck to his feet in blood. Cynthia ran into the kitchen to call 911 from the home phone and began to yell for the telephone when she discovered that it was not in the kitchen. Dustin, hearing his mother, ran up from the basement while his mother retrieved her cell phone. Dustin helped his brother to the floor in a hallway when Appellant appeared with a gun and pointed it at Dustin and ordered everyone onto the floor, threatening to kill them if they did not obey. Cynthia asked Appellant what he was doing to which he responded, “I'm giving Samantha something she'll remember.” N.T., 9/27/10, at 185. Appellant then took Leslie into the kitchen before returning and directing Cynthia to her son Matthew's room. Matthew is handicapped and unable to walk. Cynthia complied with Appellant's directive and he handcuffed her hands behind her back. Appellant then ordered Dustin into his mother's bedroom. Cynthia stated that she could hear Appellant hitting Dustin. Subsequently, Appellant re-entered Matthew's room and placed a gun against Cynthia's head and demanded that she “shut the fuck up” or he would kill her. Id. at 193. At this point, he tied Matthew's hands with a shirt and his feet with a computer cable.

Appellant then left the bedroom and began to walk up and down the stairs of the house before re-entering the bedroom where he had forced Dustin. Cynthia stated that she observed Appellant select a red hammer from a toolbox in that room and began to hit Dustin. Dustin died of massive blunt force trauma to the head. Afterward, Appellant showered and came back into Matthew's room. He asked Matthew and Cynthia for their bank cards and pin numbers. Both Matthew and Cynthia told him where to find their respective cards and gave him their pin numbers. Appellant also took Cynthia's anniversary ring.

Samantha Hintz arrived home at approximately 5:40 a.m. and was greeted by Appellant who offered to help carry groceries. Appellant then told Samantha that he had a surprise for her and told her to go to her son's room. Samantha checked on her son, and Appellant instructed her to go to her bedroom. After entering her bedroom, Appellant shoved her onto her bed, but she resisted and asked where Justin Berrios was located. Appellant lifted up a sheet and displayed the dead body of Justin, who was laying next to the bed. Justin had been stabbed fourteen times including seven stab wounds to the neck. Appellant then attempted to get Samantha onto her stomach on the bed. Samantha struggled with Appellant and he threatened her with a gun. Next, Appellant tied Samantha's hands with a necktie and her feet with a belt and left the room before returning again. Appellant took Samantha's cell phone and looked through her call list before throwing the phone onto Justin's body. He then climbed on top of Samantha, kissing her and telling her that he loved her.

Thereafter, Appellant removed Samantha's bank card and cash from her purse and exited the bedroom. Appellant, however, returned and said that he should rape Samantha. He sat next to her on her bed and placed his hand inside of her shirt and grabbed her breast as well as giving her a hickey on her neck. Subsequently, he took her car keys and told her that if he was not back in a half-hour that she could do whatever. Before leaving, he remarked that his killing spree was not yet complete. At some point, Appellant also entered Matthew's room and told Matthew and Cynthia that Wes Collier would be the next person in the house and that they could yell for help when he arrived home from work. However, he then stated, “fuck it, it's six o'clock now. If I ain't back by 6:30 you guys can do whatever the hell you want.” Id. at 209.

Samantha was eventually able to dial 911 on her cell phone with her toe. Police arrived at approximately 6:53 a.m. and found Samantha, Cynthia, and Matthew still bound. Leslie was dead in the blood-soaked kitchen. Bloody clothes were located in the basement of the home and various knives and three bloody hammers were also found. Police recovered bloody socks in the kitchen and blood was identified in the bathroom on the bath tub, a rug, and wash cloth. Missing from the home were four game systems, various video games, and jewelry.

In order to locate Appellant, police sought a court order to ping Appellant's cellular phone and find his approximate position via real time cell site location information. Detective Chris Kolarchno defined pinging at the suppression hearing as determining the real time location of the cell phone by looking at the cell signal between the phone and the closest cell tower and finding the last known address where the cell phone transmitted a signal requesting service. N.T., 8/13/09, 102–103. Detective Kolarchno stated that police also used the cell phone's GPS system to find Appellant. Id. at 104.

The Court of Common Pleas issued an order and police tracked Appellant to a street in Wilkes Barre, Pennsylvania. Police were able to fix the location of Appellant's phone within 98 meters or approximately 300 feet. Police determined Appellant's precise location after observing Samantha's stolen car outside of a residence and interviewing two individuals who exited that home. Law enforcement secured a search warrant and Appellant was arrested. Police discovered the Wii and a Playstation game system owned by the Colliers in that house as well as a gun with traces of blood on it. In addition, Samantha's vehicle contained Cynthia and Matthew's bank cards.

Appellant was transported to the Scranton Police Department and placed in a holding cell at approximately 4:30 p.m. Since Appellant's socks and shoes were considered evidence, they were confiscated. After viewing the news of Appellant's arrest, Attorney Paul Walker of the LackawannaCounty Public Defender's Office called the district attorney and asked him not to interview Appellant. At 7:00 p.m., Attorney Walker arrived at the police station and repeated his request that Appellant not be interviewed and asked to see Appellant. Officer Todd Garvey informed Assistant District Attorney Eugene Talerico, who was present at the police station, of Attorney Walker's wishes, but he was not permitted to speak with Appellant.

Detective James Pappas interviewed Appellant around 7:30 p.m. He did not inform Appellant that an attorney had appeared and asked to speak to him. Detective Pappas asked Appellant if he would speak to him and Appellant indicated that he would discuss the matter if he could have a pair of socks. Detective Pappas provided Appellant with a pair of hospital booties and read him his Miranda rights. Appellant initialed a Miranda waiver form after Detective Pappas wrote in Appellant's answers to the questions waiving his right to counsel and right to remain silent. Appellant admitted to hurting the individuals in the Collier/Hintz house but claimed that he did not remember what happened. Detective Pappas asked Appellant if he believed in God and told him that now was the time to ask for forgiveness. He also confronted him with photographs of the murder victims. Ultimately, Appellant confessed.

The Commonwealth initially proceeded with this matter as a capital murder case and the court appointed multiple attorneys, including two private attorneys, to aid in Appellant's defense. Appellant sought to suppress both his confession and the evidence collected as a result of finding Appellant via the pinging of his cell phone. The trial court denied Appellant's suppression motion, concluding that Appellant's confession was not coerced and exigent circumstances existed to negate any warrant requirement for the pinging. Thereafter, Appellant agreed to proceed with a non-jury trial in exchange for the Commonwealth's agreement not to seek...