J-S65023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNON LEE DAVIS
Appellant No. 21 EDA 2014
Appeal from the Judgment of Sentence November 22, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002430-2011
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 12, 2014
Appellant, Vernon Lee Davis, appeals from the judgment of sentence
entered on November 22, 2013, following his jury trial conviction for
indecent assault of a person less than 13 years of age.1 On this direct
appeal, Appellant’s court-appointed counsel filed both a petition to withdraw
as counsel and an accompanying brief pursuant to Anders v. California,
386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We conclude that Appellant’s counsel has complied with the
procedural requirements necessary for withdrawal. Moreover, after
independently reviewing the record, we conclude that the instant appeal is
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1
18 Pa.C.S.A. § 3126(a)(7).
*Retired Senior Judge assigned to the Superior Court.
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wholly frivolous. We therefore grant counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
We briefly summarize the facts and procedural history of this case as
follows. The Commonwealth filed a complaint against Appellant in February
2011, charging him with the aforementioned crime, as well as aggravated
indecent assault of a person less than 13 years of age and endangering the
welfare of a child.2 The charges resulted after the Montgomery County
Office of Children and Youth received information that Appellant improperly
touched his five-year old granddaughter’s vaginal area. In April 2012, the
Commonwealth withdrew the aggravated indecent assault charge. On
October 10, 2012, Appellant filed a counseled motion to suppress separate
statements made to police. First, Appellant claimed that he made oral
statements to police that were involuntarily coerced in violation of Miranda
v. Arizona, 384 U.S. 436 (1966). Next, Appellant argued that further oral
and written statements made to police after Miranda warnings were given,
but after he invoked his right to counsel, required suppression. The trial
court held a suppression hearing on October 10, 2012. On February 26,
2013, the trial court granted Appellant partial relief on his suppression
motion in a written opinion, stating:
[Appellant’s] oral statement at the outset of questioning by
the detectives, after being given and acknowledging
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2
18 Pa.C.S.A. §§ 3125(b) and 4304(a), respectively.
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Miranda warnings, admitting “inappropriate contact’’ with
his minor granddaughter, shall be admissible at trial;
[Appellant’s] subsequent written statement and any other
statements to the detectives made by him after he
suggested to them that he thought he ought to invoke his
right to an attorney are suppressed, on [Appellant’s]
motion, as taken in violation of Miranda and its progeny.
Trial Court Opinion, 2/26/2013, at 21 (emphasis in original).
The case proceeded to a two-day jury trial wherein the jury convicted
Appellant of indecent assault of a person less than 13 years of age and
acquitted him of endangering the welfare of a child. On November 22, 2013,
the trial court sentenced Appellant to four to 12 months of imprisonment,
followed by three years of probation consecutive to the expiration of his
parole. This timely appeal resulted.3
On appeal, Appellant’s court-appointed counsel filed a petition for
leave to withdraw and accompanied this petition with an Anders brief. The
Anders brief raises the following claim:
Did the trial court commit reversible legal error when it
denied Appellant’s motion to suppress statements that he
had provided to police after he was given Miranda
warnings but before he invoked his right to counsel?
Anders Brief at 4 (complete capitalization omitted).
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3
Appellant filed a notice of appeal on December 20, 2013. On January 8,
2014, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on January 24, 2014. The trial court relied upon its earlier opinion issued on
February 24, 2013 that addressed Appellant’s suppression issues in lieu of
filing a new opinion pursuant to Pa.R.A.P. 1925(a).
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Before reviewing the merits of this appeal, however, this Court must
first determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “petition the court for
leave to withdraw stating that, after making a conscientious examination of
the record, counsel has determined that the appeal would be frivolous.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in
which counsel:
(1) provide[s] a summary of the procedural history and
facts, with citations to the record; (2) refer[s] to anything in
the record that counsel believes arguably supports the
appeal; (3) set[s] forth counsel’s conclusion that the appeal
is frivolous; and (4) state[s] counsel’s reasons for
concluding that the appeal is frivolous. Counsel should
articulate the relevant facts of record, controlling case law,
and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and advise the client “of [the client’s] right to retain new counsel, proceed
pro se or raise any additional points worthy of this Court’s attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
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proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting
Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981). It is
only when both the procedural and substantive requirements are satisfied
that counsel will be permitted to withdraw.
In the case at bar, counsel has met all of the above procedural
obligations.4 We must, therefore, review the entire record and analyze
whether this appeal is, in fact, wholly frivolous. Our analysis begins with the
issue raised in the Anders brief.
Appellant’s Anders brief claims that he made an oral statement to
police that required suppression because:
the statement was not knowingly, voluntarily, nor
intelligently provided to the detectives in that he was not in
his right mind at the time of the statement to comprehend
its significance and the rights he was waiving as a result of
a long delay between his arrest and preliminary
arraignment; the fact that he did not sleep the previous
night as a result of being in a cold holding cell and provided
with only a thin blanket; that he suffered from diabetes and
did not have his medication; and the fact that he had a
difficult time reading the Miranda rights form and waiver
due to the fact that he did not have his glasses with him at
the Pottstown Police station.
Anders Brief at 17.
When reviewing a challenge to a trial court's denial of a suppression
motion, our standard of review is as follows:
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4
Appellant has not responded to counsel’s petition to withdraw.
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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. [However], the suppression court's legal
conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly
applied the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa. Super. 2012)
(citation omitted).
Regarding statements made to police during an interrogation, our
Supreme Court has recently determined:
The test for determining the voluntariness, and thus the
admissibility, of an accused's statement is the totality of the
circumstances surrounding the statement. The mere fact
that there is some passage of time between when an
accused is arrested and when he or she gives an inculpatory
statement does not constitute grounds for suppression of
the statement. Numerous factors should be considered
under a totality of the circumstances test to determine
whether a statement was freely and voluntarily made: the
means and duration of the interrogation, including whether
questioning was repeated, prolonged, or accompanied by
physical abuse or threats thereof; the length of the
accused's detention prior to the confession; whether the
accused was advised of his or her constitutional rights; the
attitude exhibited by the police during the interrogation; the
accused's physical and psychological state, including
whether he or she was injured, ill, drugged, or intoxicated;
the conditions attendant to the detention, including whether
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the accused was deprived of food, drink, sleep, or medical
attention; the age, education, and intelligence of the
accused; the experience of the accused with law
enforcement and the criminal justice system; and any other
factors which might serve to drain one's powers of
resistance to suggestion and coercion.
Commonwealth v. Martin, 2014 WL 4745782, at *14 (Pa. Sept. 24, 2014)
(citation omitted).
At the suppression hearing, the Commonwealth introduced the
testimony of Pottstown Police Detective Heather Long, the police investigator
assigned to investigate sexually based offenses in that jurisdiction. N.T.,
10/10/2012, at 4-5. Police arrested Appellant on a warrant in Manor
Township on March 28, 2011 and “transported [him] to Pottstown’s police
station where he was held overnight until he could be arraigned.” Id. at 7.
“Due to his length of incarceration, [Appellant] was provided breakfast”
including juice, coffee and a breakfast sandwich after he was removed from
a holding cell and relocated to Detective Long’s office. Id. at 7, 24. Once
inside her office, Detective Long “read [Appellant] his Miranda rights and he
signed the form waiving those rights at that time.” Id. Detective Long read
Appellant his constitutional rights “verbatim” from a pre-printed form and
gave Appellant an opportunity to read, sign and date the form. Id. at 7-8.
On that printed form, Appellant handwrote that he understood his rights and
was willing to give a voluntary statement. Id. at 8-11. During the
interview, Appellant remained in leg shackles, but his hands remained free.
Id. at 11. Appellant did not appear intoxicated. Id. No threats or promises
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were made to Appellant. Id. at 18. Appellant did not ask for food or to use
the bathroom. Id. at 19. Appellant asked questions about the length of
sentence and collateral consequences under Megan’s Law he was potentially
facing. Id. at 28-29.
Appellant testified on his own behalf at the suppression hearing.
Appellant stated that he was arrested at approximately 3:45 p.m. on March
28, 2011. Id. at 35-36. He testified he was handcuffed to a bar of a
holding cell in Manor Township until Pottstown police could pick him up that
evening. Id. at 37. Appellant estimated that he was placed in a holding cell
in Pottstown at 9:00 p.m. Id. at 38. Appellant did not speak to anyone
until the following morning. Id. He was not offered food or drink while he
was in the holding cell. Id. at 38-39. Appellant testified that he did not
sleep well because it was cold in the holding cell and he was only given “a
thin blanket.” Id. at 40. Police provided breakfast the following morning.
Id. at 42. Appellant concedes that Detective Long advised him of his
Miranda rights after he ate. Id. at 42-43, 45. She read Miranda warnings
to him aloud and Appellant did not have problems understanding what
Detective Long was saying. Id. at 54-55. Appellant testified that he was
diagnosed as a diabetic in 1986, that he is supposed to take two proscribed
pills a day for the ailment, but because he did not have medical insurance at
the time of the police interview he did not have his medication on that day
anyway. Id. at 43-44, 53-54. Appellant admitted that Detective Long did
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not treat him unfairly or threaten him at any time. Id. at 50-52. Appellant
never told police that he required medical attention. Id. at 53. At the time
of the police interview, Appellant was 61 years old. Id. at Exhibit C-2.
Examining the totality of the facts in the light most favorable to the
Commonwealth, as our standard of requires, we agree with the trial court
that suppression was unwarranted. While police held Appellant overnight in
a holding cell, Appellant was clearly advised of his constitutional rights the
following morning. It does not matter that Appellant did not have his
reading glasses, because there is no dispute that Detective Long verbally
provided him with Miranda warnings and he readily understood them.
Appellant did not appear ill or intoxicated when he was speaking with police.
The interview was conducted in an office setting and was not prolonged.
Police provided Appellant with something to eat prior to being advised of his
rights. They did not withhold medical attention, coerce, or threaten
Appellant. Appellant was 61 years old at the time and asked pointed
questions about the potential penal consequences he faced, thus,
demonstrating knowledge of the criminal justice system. Based upon all of
the foregoing, we conclude that Appellant voluntarily made an inculpatory
statement to police. Accordingly, the trial court did not err by denying
suppression.
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On the foregoing basis, and because our independent assessment of
the record yields no non-frivolous issues which merit our review, we grant
counsel leave to withdraw and we affirm the judgment of sentence.
Leave to withdraw granted. Judgment of sentence affirmed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
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