J-A16003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD P. CORKERY,
Appellant No. 2956 EDA 2014
Appeal from the Judgment of Sentence September 16, 2014
in the Court of Common Pleas of Carbon County
Criminal Division at No.: CP-13-CR-0000527-2011
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 25, 2015
Appellant, Richard P. Corkery, appeals from the judgment of sentence
imposed following his jury conviction of twenty-seven counts of possession
of child pornography.1 We affirm.
We take the following facts from the trial court’s opinion and our
independent review of the record. On April 6, 2011, the Nesquehoning
Police Department received an anonymous letter that requested they look
into child pornography allegations against Appellant. The letter stated, and
Borough Police Chief Sean T. Smith confirmed, that Appellant recently had
been terminated from his employment at a local radio station because of his
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 6312(d)(1).
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use of a company computer to access child pornography. Chief Smith
obtained the consent of the station owner and manager to seize the
computer. A forensic examination revealed that thirty-four images of naked
males performing sex acts had been accessed on the computer between the
hours of 8:00 a.m. and 10:00 a.m. on several dates from February 15, 2011
to March 28, 2011. The Commonwealth consulted Dr. Thomas Novinger who
offered his expert opinion that twenty-eight of the males were under the age
of eighteen at the time the pictures were taken.
Thereafter, Chief Smith telephoned Appellant and asked that he come
to the Nesquehoning Police Station for an interview, but the officer agreed to
Appellant’s request that the interview be conducted at his home in Coaldale,
Pennsylvania, instead. On May 16, 2011, Chief Smith, Federal Bureau of
Investigation Agent John Bates, and Pennsylvania State Trooper Scott Sotak
met with Appellant at his home. Before questioning began, the officers
advised Appellant that he had the right to refuse to answer any questions.
Appellant invited the men into his kitchen, and they joined him around the
kitchen table. Agent Bates again informed Appellant that he had the right to
decline to answer any questions. Agent Bates and Trooper Sotack then
asked Appellant about his possible connection to the pornographic images on
the radio station’s computer. Appellant admitted he had accessed
pornographic photographs on the dates in question, and named the website
that was the source of some of the images.
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During the course of the approximately two hour interview, Appellant
offered to show the officers various examples of his community involvement,
including photographs from youth sports teams. When informed that he
could move freely about his home as long as, for their own safety, the
officers were able to accompany him, Appellant led them into the basement,
living room, and bedroom areas of his home.
On July 13, 2011, the Commonwealth filed a criminal complaint
against Appellant, charging him with the previously mentioned twenty-seven
counts of possession of child pornography. On July 15, 2011, Appellant
waived formal arraignment on the charges and, on August 8, 2011, the
Commonwealth filed an information.
On October 12, 2012, Appellant filed a motion to suppress, arguing for
the suppression of his May 16, 2011 statements to the officers on the
ground that he had not received his Miranda2 warnings prior to questioning.
The Commonwealth filed a response on December 3, 2012, asking that
Appellant’s motion be denied because it violated Pennsylvania Rules of
Criminal Procedure 579(A) and 581(b). See Pa.R.Crim.P. 579(A), 581(B).
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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On March 11, 2013, the trial court denied Appellant’s motion to suppress on
the basis of untimeliness and on its merits.3
On June 12, 2014, a jury found Appellant guilty of the twenty-seven
counts of possession of child pornography. On September 16, 2014, the
court sentenced Appellant to not less than nine months’ nor more than three
years’ incarceration, followed by three years’ probation. Appellant timely
appealed.4
Appellant raises four questions for this Court’s review:
1. Whether the trial court erred in denying the motion to
suppress the Appellant’s statement, as the statement was taken
in violation of the Appellant’s [Miranda] rights . . . ?
2. Whether trial counsel was ineffective in failing to object to
the admission of Commonwealth’s Exhibit “2”, which was the
handwritten notes of Chief Smith?
3. Whether trial counsel was ineffective in failing to properly
cross-examine [the] Commonwealth’s expert witness on his
qualifications and in failing to object to his qualifications as an
expert witness?
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3
Appellant has not raised an issue of the timeliness of his suppression
motion. However, we observe for sake of completeness that the trial court
properly found that the suppression motion was untimely pursuant to Rule
581(B) and could have been dismissed on that basis alone where Appellant
failed to prove an exception. (See Trial Court Opinion, 3/11/13, at 6); see
also Pa.R.Crim.P. 581(B) (requiring that motion to suppress be filed with
omnibus pretrial motion within thirty days of arraignment “[u]nless the
opportunity did not previously exist, or the interests of justice otherwise
require[.]”).
4
Appellant filed a timely Rule 1925(b) statement pursuant to the court’s
order on November 12, 2014. See Pa.R.A.P. 1925(b). The court filed an
opinion on December 12, 2014. See Pa.R.A.P. 1925(a).
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4. Whether the trial court erred in allowing the jury to view
Commonwealth’s Exhibit “2”, which included the Appellant’s
statement, during deliberations?
(Appellant’s Brief, at 6) (most capitalization omitted).
In his first issue, Appellant maintains that “[h]is statement was . . .
secured by the Commonwealth in violation of [his] constitutional right and,
therefore, his statement should have been suppressed.” (Id. at 18).
Specifically, he argues that he was custodially detained and should have
received Miranda warnings before questioning. (See id. at 14-18). This
claim lacks merit.5
Our standard of review of a challenge to a court’s ruling on a
suppression motion is well-settled:
Our standard of review of a denial of
suppression is whether the record supports the trial
court’s factual findings and whether the legal
conclusions drawn therefrom are free from error.
Our scope of review is limited; we 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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5
We observe that the argument section of Appellant’s brief fails to identify
specifically what statement he sought to suppress pursuant to Pennsylvania
Rule of Appellate Procedure 2119(c), (d). (See Appellant’s Brief, at 14-18).
However, because this error does not affect our meaningful appellate review,
we will not find Appellant’s issue waived.
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In addition, [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. The suppression court is
also entitled to believe all, part or none of the evidence
presented. Finally, at a suppression hearing, the Commonwealth
has the burden of establish[ing] by a preponderance of the
evidence that the evidence was properly obtained.
Commonwealth v. Galendez, 27 A.3d 1042, 1045-46 (Pa. Super. 2011)
(en banc), appeal denied, 40 A.3d 120 (Pa. 2012) (citations and quotation
marks omitted).
It has long been the precedent of this Commonwealth that:
The test for determining whether a suspect is
being subjected to custodial interrogation so as to
necessitate Miranda warnings is whether he is
physically deprived of his freedom in any significant
way or is placed in a situation in which he reasonably
believes that his freedom of action or movement is
restricted by such interrogation.
Said another way, police detentions become custodial
when, under the totality of the circumstances, the conditions
and/or duration of the detention become so coercive as to
constitute the functional equivalent of arrest.
The factors a court utilizes to determine, under the totality
of the circumstances, whether a detention has become so
coercive as to constitute the functional equivalent of arrest
include: the basis for the detention; its length; its location;
whether the suspect was transported against his or her will, how
far, and why; whether restraints were used; whether the law
enforcement officer showed, threatened or used force; and the
investigative methods employed to confirm or dispel suspicions.
The fact that a police investigation has focused on a particular
individual does not automatically trigger “custody,” thus
requiring Miranda warnings.
Commonwealth v. Baker, 24 A.3d 1006, 1019-20 (Pa. Super. 2011),
affirmed, 78 A.3d 1044 (Pa. 2013) (citations omitted).
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Here, in denying Appellant’s motion to suppress, the trial court found
that he was not custodially detained when he spoke to officers at his home
on May 16, 2011. (See Trial Court Opinion, 3/11/13, at 6-9). We agree.
The interview of Appellant occurred in his own home, a location
selected by him. (See N.T. Suppression Motion, 12/14/12, at 6). Appellant
met the officers at the front door, where each of them was introduced to
him, and he invited them inside. (See id. at 7, 21, 41, 57, 67). Chief Smith
indicated that the impetus of the interview was the anonymous letter
containing allegations about Appellant accessing child pornography at the
radio station. (See id. at 7, 54-55). Police informed him that he was not
under arrest or in their custody, and that he was free to decline to answer
any questions or to speak with the officers. (See id. at 7, 27, 32).
Appellant invited the officers to the kitchen table where he offered them
something to drink. (See id. at 7, 18, 22). Appellant was free to move
about his home, and did so, voluntarily leading the officers into various
rooms to show them evidence of his civic involvement. (See id. at 7, 18,
22, 26-27, 41). The officers never physically restrained Appellant in any
way. (See id. at 7, 27, 31, 41).
Based on the foregoing, we conclude that the record supports the trial
court’s factual findings and that its legal conclusion, that Appellant was not
subject to custodial detention so as to necessitate Miranda warnings, is free
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from legal error. See Galendez, supra at 1045; Baker, supra at 1019-20.
Appellant’s first issue would not merit relief.
In Appellant’s second and third claims, he argues that trial counsel was
ineffective. (See Appellant’s Brief, at 18-23). These allegations are denied
without prejudice to Appellant to raise them in a petition filed under the
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.6
In Appellant’s fourth issue, he argues that the trial court violated
Pennsylvania Rule of Criminal Procedure 646(C)(2) when it “allow[ed] the
jury, during its deliberations, to view Commonwealth’s exhibit 2 [(Chief
Smith’s notes)], which contained Appellant’s statement[,]” and “were
nothing more than [the officer’s] courtroom testimony reduced to writing─in
effect, a transcript of his trial testimony, which is strictly prohibited by Rule
646(C)(2).” (Appellant’s Brief, at 23, 24) (internal quotation marks,
capitalization, and citation omitted). This issue is waived.
It is well settled that issues not raised before the trial court
cannot be advanced for the first time on appeal. Pa.R.A.P.
302(a).
Issue preservation is foundational to proper
appellate review. . . . By requiring that an issue be
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6
“[T]his Court cannot engage in review of ineffective assistance of counsel
claims on direct appeal absent an ‘express, knowing and voluntary waiver of
PCRA review.’” Commonwealth v. Holmes, 79 A.3d 562, 575 (Pa. 2013)
(citation omitted). Here, Appellant did not waive PCRA review and no
exceptions to the general rule that ineffectiveness of counsel claims must
await post-collateral review exist. See id. at 576.
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considered waived if raised for the first time on
appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
consider the issue. This jurisprudential mandate is
also grounded upon the principle that a trial court . . .
must be given the opportunity to correct its errors as
early as possible. Related thereto, we have explained
in detail the importance of this preservation
requirement as it advances the orderly and efficient
use of our judicial resources. Finally, concepts of
fairness and expense to the parties are implicated as
well.
Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (case
citation omitted).
In this case, during deliberations, the jury requested to see
Commonwealth’s Exhibit 2, Chief Smith’s police report. (See N.T. Trial,
6/12/14, at 149-50, 152). Appellant’s counsel objected, not on the Rule
646(C)(2) grounds asserted here, but on the basis that the report
“contain[ed] statements from witnesses who weren’t even offered during the
trial,” specifically, those of Trooper Sotack, who was unavailable due to a
medical disability. (N.T. Trial, 6/12/14, at 152, 168-69).7
Therefore, because Appellant failed to raise any issue in the trial court
that allowing the jury to view Chief Smith’s notes during deliberations
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7
In fact, at trial, per Appellant’s counsel’s request, the court redacted the
police report to remove any statements of Trooper Sotack, and gave the jury
a cautionary instruction making it clear that the subject report was not a
transcript, but merely contained Chief Smith’s notes. (See N.T. Trial,
6/12/14, at 158, 160-64, 168-69). At the conclusion of the instruction,
Appellant’s counsel agreed that the court properly addressed the concerns
that had been discussed by the parties. (See id. at 169).
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violated Rule 646(C)(2), specifically because the notes contained his
statement and were a transcript of Chief Smith’s trial testimony, the issue is
waived for our review. See Miller, supra at 811; see also Pa.R.A.P.
302(a).
Additionally, we observe that “[i]t is an appellant's duty to present
arguments that are sufficiently developed for our review . . . . [and] the brief
must support the claims with pertinent discussion, with references to the
record and with citations to legal authorities.” Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007), appeal denied, 940 A.2d 362 (Pa.
2008) (citations omitted). “This Court will not act as counsel and will not
develop arguments on behalf of an appellant. Moreover, when defects in a
brief impede our ability to conduct meaningful appellate review, we may . . .
find certain issues to be waived.” Id. (citations omitted).
Here, other than to include the text of Rule 646, Appellant fails to
provide any pertinent discussion, citation of authority, or references to the
record regarding his argument that the court erred in allowing the jury to
view Chief Smith’s notes during deliberations because they contained his
statement. (See Appellant’s Brief, at 23-24); Pa.R.A.P. 2119(a)-(c); Hardy,
supra at 771. Therefore, we deem this challenge waived on this basis as
well. See Hardy, supra at 771.
Finally, Appellant’s argument in issue four that the court erred in
allowing the jury to view Chief Smith’s notes during deliberations because
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they were a transcript of his trial testimony also is waived for his failure to
raise the issue in his Rule 1925(b) statement. (See Appellant’s Brief, at 23-
24).
Pursuant to Rule 1925(b)(4)(vii), “Issues not included in
the Statement and/or not raised in accordance with [Rule
1925(b)(4)] are waived.” As our Supreme Court recently
reiterated:
Our jurisprudence is clear and well-settled, and
firmly establishes that: Rule 1925(b) sets out a
simple bright-line rule, which obligates an appellant
to file and serve a Rule 1925(b) statement, when so
ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack
the authority to countenance deviations from the
Rule’s terms; the Rule’s provisions are not subject to
ad hoc exceptions or selective enforcement;
appellants and their counsel are responsible for
complying with the Rule’s requirements.
Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super. 2013), appeal
denied, 94 A.3d 1007 (Pa. 2014) (citation omitted) (waiving and declining to
review Appellant’s claim for failure to include it in Rule 1925(b) statement).
Here, Appellant’s Rule 1925(b) statement claims that the trial court
erred in allowing the jury to view Commonwealth’s Exhibit 2 because counsel
objected and because the hand-written notes contained Chief Smith’s
recollection of what Appellant told law enforcement on May 16, 2011. (See
Rule 1925(b) Statement, 11/12/14, at unnumbered page 3-5). However, it
did not contain Appellant’s current argument that the notes were “a
transcript of [Chief Smith’s] trial testimony, which is strictly prohibited under
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Rule 646(C)(2).” (Appellant’s Brief, at 24) (citation omitted). Therefore, we
deem this argument waived on this basis, as well. See Elia, supra at 263.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2015
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