J-S46017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY WILLIAMS
Appellant No. 2089 EDA 2014
Appeal from the Judgments of Sentence January 8, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003248-2012
CP-39-CR-0003366-2012
BEFORE: MUNDY, OLSON and MUSMANNO, JJ.:
MEMORANDUM BY OLSON, J.: FILED OCTOBER 07, 2015
Appellant, Anthony Williams, appeals pro se from the judgment of
sentence entered on January 8, 2014, as made final by the resolution of his
post-sentence motion on June 13, 2014. We quash in part and affirm in
part.
The factual background and procedural history of this case are as
follows.1 On the morning of June 24, 2012, Jocelyn Kyte (“Kyte”) was
attending church services. Kyte’s three children remained at the family
residence, located in Allentown. Appellant broke into Kyte’s residence and
stole two video game systems, a laptop, and a cellular telephone. On June
27, 2012, Nelly Negron (“Negron”) was in the upstairs portion of her home,
1
For simplicity, we only discuss the procedural history relevant to the issues
in this appeal.
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also located in Allentown. Appellant broke into her home and stole her
laptop. He also attempted to steal Negron’s television, but was
unsuccessful.
Negron confronted Appellant as he fled with the laptop. A physical
confrontation ensued and Appellant struck Negron during the altercation.
Appellant was seen running away from Negron’s residence. A police
broadcast went out with a physical description of the suspect and the
direction he was last seen traveling. Officer Michael Mancini saw Appellant,
who matched the suspect’s physical description, walking in the vicinity where
the suspect was last observed. Appellant was carrying two bags, one of
which Officer Mancini believed to be a laptop bag. Officer Mancini exited his
vehicle and asked Appellant if he could speak with him. Appellant turned
and fled the scene on foot. Officer Mancini gave chase. During the ensuing
pursuit, Appellant dropped the bags he was carrying. Eventually, Appellant
was apprehended after Officer Mancini deployed his taser. Police then
recovered the two bags that Appellant abandoned during the chase.
On June 27, 2012, Appellant was interviewed by Detective Andrew
Hackman regarding the Negron burglary. During that interview, Appellant
confessed to stealing Negron’s laptop but did not admit to entering her
residence. On July 17, 2012, Appellant was interviewed by now-Officer2
Michael Popovich regarding the Kyte burglary. During that interview,
2
See page 22, infra.
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Appellant made incriminating statements about his involvement in the Kyte
burglary. Appellant attempted to discuss the Negron burglary with Officer
Popovich; however, Officer Popovich told Appellant that they could not
discuss the Negron burglary because counsel was appointed in that case.
On June 27, 2012, Appellant was charged via criminal complaint at
docket 39-CR-0003248-2012 (“case 3248”) with burglary,3 criminal
trespass,4 theft by unlawful taking,5 receiving stolen property,6 simple
assault,7 and resisting arrest.8 The charges in case 3248 arose from
Appellant’s burglary of Negron’s residence. On July 23, 2012, Appellant was
charged via criminal complaint at docket 39-CR-0003366-2012 (“case
3366”) with burglary, criminal trespass, theft by unlawful taking, and
receiving stolen property. The charges in case 3366 arose from Appellant’s
burglary of Kyte’s residence. On August 2, 2012, Attorney David Ritter was
appointed to represent Appellant. On August 31, 2012, criminal
informations were filed in both cases charging the same offenses as the
criminal complaints.
3
18 Pa.C.S.A. § 3502(a).
4
18 Pa.C.S.A. § 3503(a)(1)(ii).
5
18 Pa.C.S.A. § 3921(a).
6
18 Pa.C.S.A. § 3925(a).
7
18 Pa.C.S.A. § 2701(a)(1).
8
18 Pa.C.S.A. § 5104.
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On November 8, 2012, Appellant filed a pro se motion to waive his
right to counsel and proceed pro se. On December 3, 2012, the trial court
held a hearing on Appellant’s motion. At the conclusion of that hearing, the
trial court granted Appellant’s motion to proceed pro se and appointed
Attorney Ritter to serve as standby counsel. That same day, Appellant also
filed an omnibus pre-trial motion. Appellant amended his omnibus pre-trial
motion on January 22, 2013. In that motion, he sought suppression of the
two videotaped confessions and the bags recovered when he fled from
police. He also sought consolidation of cases 3248 and 3366. On January
28, 2013, the trial court granted Appellant’s request to consolidate the two
cases for trial.
On March 28, 2013, a suppression hearing was held but no ruling was
immediately forthcoming. Over the next several months Appellant filed
dozens of discovery related motions. These included a motion seeking to
examine Officer Popovich’s personnel file and a motion seeking permission to
view his videotaped confession. Appellant also sought discovery from the
Commonwealth of a police report used during one of his interrogations and
videos from city cameras. The trial court denied Appellant’s motion to
examine Officer Popovich’s personnel file. Originally, the trial court ordered
the county jail to permit Appellant to view his videotaped confessions;
however, the jail lacked the necessary technology. Therefore, the district
attorney permitted Appellant and Attorney Ritter to view the confessions in
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the district attorney’s office. In addition, although the Commonwealth
initially denied possessing the police report used during Appellant’s
interrogation, the report was produced to Appellant after it was located. On
June 26, 2013, the trial court denied Appellant’s motion to suppress.
On September 3, 2013, Appellant sought dismissal of the charges on
the grounds that the Commonwealth delayed production of the police report
and his inability to view the confessions in jail. That same day, Appellant
also sought dismissal for violation of Pennsylvania Rule of Criminal
Procedure 600. On November 5, 2013, Appellant again waived his right to
counsel. On November 15, 2013, the trial court denied Appellant’s motion to
dismiss for alleged discovery violations and denied Appellant’s motion to
dismiss for violation of Rule 600.
On November 19, 2013, trial commenced. On the second day of trial,
November 20, 2013, Appellant no longer wanted to represent himself.
Attorney Ritter therefore stepped in and became trial counsel. That same
day, the Commonwealth moved in limine to prohibit cross-examination of
Officer Popovich regarding his personnel file and to prohibit evidence relating
to the Commonwealth’s alleged discovery violations. The trial court granted
the Commonwealth’s motion in limine.
On November 21, 2013, the jury retired to deliberate. During its
deliberations, the jury asked to view Appellant’s videotaped confession
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relating to case 3366.9 The trial court permitted the jury to view the
confession on a laptop in the jury room. That same evening, the jury found
Appellant guilty of burglary, criminal trespass, theft by unlawful taking, and
receiving stolen property in cases 3248 and 3366. The jury found Appellant
not guilty of simple assault and resisting arrest in case 3248.
On December 17, 2013, Appellant filed a motion seeking to proceed
pro se on this direct appeal. On December 24, 2013, the trial court denied
that motion. On January 8, 2014, Appellant orally moved for arrest of
judgment. The trial court denied that motion and immediately proceeded to
sentencing. Appellant was then sentenced in cases 3248 and 3366. In
both cases, Appellant was sentenced to 6 to 20 years’ imprisonment for
burglary. The remaining six counts merged with the burglary convictions.
The two sentences were ordered to run consecutively.
On January 16, 2014, Appellant filed a post-sentence motion.
Appellant argued, inter alia, that the trial court erred by permitting one of
his confessions to go back with the jury. Thereafter, Attorney Ritter joined
the Lehigh County Public Defender’s office which raised a conflict in his
representation of Appellant. On March 6, 2014, the trial court appointed
Attorney Sean Poll to represent Appellant. Appellant filed an amended post-
sentence motion on March 17, 2014. That same day, Appellant moved to
9
The jury did not request to view the confession in case 3248 and the DVD
with that confession was not sent back with the jury.
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waive his right to counsel. On April 21, 2014, the trial court denied
Appellant’s motion to waive counsel.
On June 13, 2014, the trial court granted in part and denied in part
Appellant’s post-sentence motion. The trial court agreed that it erred by
sending one of Appellant’s confessions out with the jury. The trial court
concluded that the error prejudiced Appellant in case 3366. Therefore, the
trial court vacated Appellant’s judgment of sentence in case 3366. The trial
court concluded, however, that the error did not prejudice Appellant as to
case 3248. Thus, it denied Appellant’s post-sentence motion as to case
3248. This timely appeal followed.
Thereafter, on July 11, 2014, Appellant once again moved to waive
counsel for this direct appeal. On July 17, 2014, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
(“concise statement”). See Pa.R.A.P. 1925(b). On July 18, 2014, the
Commonwealth filed a motion to reconsider. In that motion, the
Commonwealth alleged that the submission of Appellant’s confession to the
jury prejudiced him in both case 3248 and case 3366. As the notice of
appeal had already been filed, however, the trial court lacked jurisdiction to
reach the merits of the Commonwealth’s motion to reconsider. On July 25,
2014, Appellant filed his concise statement, which included all issues raised
on appeal. On August 29, 2014, a hearing was held regarding Appellant’s
motion to proceed pro se on this direct appeal. The trial court granted
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Appellant’s motion at the conclusion of that hearing and appointed Attorney
Poll as standby counsel. On September 5, 2014, the trial court issued its
Rule 1925(a) opinion. Thereafter, this Court remanded this case to the trial
court to permit supplementation of the certified record. The case is now ripe
for disposition.
Appellant presents 11 issues for our review:
1. [Did the trial court possess jurisdiction in this case?
2. Did the prosecution of Appellant violate his right to equal
protection?
3. Was Appellant entitled to have the charges dismissed because
the Commonwealth violated Pennsylvania Rule of Criminal
Procedure 600?
4. Did the Commonwealth’s discovery violation warrant dismissal of
all charges?
5. Was the evidence at trial sufficient to find Appellant guilty?
6. Did the violation of Pennsylvania Rule of Criminal Procedure 646
prejudice Appellant?
7. Did the trial court err in denying Appellant’s discovery request
relating to Officer Popovich’s personnel file?
8. Did the trial court err by not suppressing Appellant’s
confessions?
9. Did the trial court err by not suppressing Appellant’s bags?
10. Did the trial court err by granting the Commonwealth’s motion
in limine?
11. Was the verdict against the weight of the evidence]?
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Appellant’s Brief at vi.10
Prior to addressing the merits of this appeal, we must first determine if
we have jurisdiction. See Commonwealth v. Harris, 114 A.3d 1, 6 (Pa.
Super. 2015) (citation omitted) (“[W]e may sua sponte consider whether we
have jurisdiction to consider the merits of the claims presented.”). “As a
general rule, this Court has jurisdiction only over appeals taken from final
orders.” Angelichio v. Myers, 110 A.3d 1046, 1048 (Pa. Super. 2015)
(citation omitted). Typically, in criminal cases only judgments of sentence
are final appealable orders. Commonwealth v. Heilman, 876 A.2d 1021,
1026 (Pa. Super. 2005). The judgment of sentence in case 3366 was
vacated. Therefore, as to Appellant, no final order has been entered in case
3366. We therefore quash this appeal insomuch as Appellant challenges the
trial court’s orders in case 3366.
We next turn to the merits of Appellant’s appeal as it relates to case
3248. In his first issue, Appellant argues that the trial court lacked
jurisdiction over this case. “Issues pertaining to jurisdiction are pure
questions of law, and an appellate court's scope of review is plenary.
Questions of law are subject to a de novo standard of review.” In re J.A.,
107 A.3d 799, 813 n.15 (Pa. Super. 2015) (citation omitted). “Jurisdiction
relates to the court’s power to hear and decide the controversy presented.
All courts of common pleas have statewide subject matter jurisdiction in
10
We have re-numbered the issues for ease of disposition.
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cases arising under the Crimes Code.” Commonwealth v. Gross, 101 A.3d
28, 32 (Pa. 2014) (internal citation, quotation marks, and alteration
omitted). In this case, the burglary occurred in Lehigh County, which is in
the Commonwealth of Pennsylvania. Therefore, all courts of common pleas
in the Commonwealth, including the Court of Common Pleas of Lehigh
County, possessed jurisdiction over this case.
Appellant essentially argues that he is a “sovereign citizen” and,
therefore, is not subject to the laws of the Commonwealth of Pennsylvania.
Cf. Charles E. Loesser, From Paper Terrorists to Cop Killers: The Sovereign
Citizen Threat, 93 N.C. L. Rev. 1106, 1120-1125 (2015) (describing the
beliefs held by sovereign citizens). Courts in this Commonwealth and across
the nation have rejected such sovereign citizen claims. Moyer v. Zoning
Hearing Bd. of W. Pottsgrove Tp., 2010 WL 9517394, *18–19 (Pa.
Cmwlth. July 8, 2010); see United States v. Himmelreich, 481 F. App’x
39, 40 n.2 (3d Cir. 2012) (per curiam), citing United States v. Benabe,
654 F.3d 753, 767 (7th Cir. 2011); Charlotte v. Hanson, 433 F. App’x 660,
661 (10th Cir. 2011). We agree with these courts that such sovereign
citizen claims are frivolous.
In his second issue, Appellant argues that his prosecution violated the
equal protection clause of the United States constitution because neither he
nor his ancestors consented to the Pennsylvania constitution. As this
presents a pure question of law, our standard of review is de novo and our
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scope of review is plenary. See Commonwealth v. Atwell, 785 A.2d 123,
125 (Pa. Super. 2001). Appellant argues that his prosecution violates the
equal protection clause for the same reason that the trial court lacked
jurisdiction over his case, i.e., neither he nor his ancestors consented to the
Pennsylvania constitution. As noted above, such sovereign citizen
arguments are wholly frivolous. Accordingly, Appellant’s prosecution does
not violate the equal protection clause.
In his third issue, Appellant argues that the Commonwealth violated
Pennsylvania Rule of Criminal Procedure 600. Rule 600 provides, in
pertinent part:
(A) . . . . (3) Trial in a court case in which a written complaint is
filed against the defendant, when the defendant is at liberty on
bail, shall commence no later than 365 days from the date on
which the complaint is filed.
***
(C) In determining the period for commencement of trial, there
shall be excluded therefrom
***
(3) such period of delay at any stage of the proceedings as
results from:
(a) the unavailability of the defendant or the defendant's
attorney;
(b) any continuance granted at the request of the defendant or
the defendant's attorney.
***
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(G) For defendants on bail after the expiration of 365 days, at
any time before trial, the defendant or the defendant’s attorney
may apply to the court for an order dismissing the charges with
prejudice on the ground that this rule has been violated. A copy
of such motion shall be served upon the attorney for the
Commonwealth, who shall also have the right to be heard
thereon.
If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were beyond the
control of the Commonwealth, the motion to dismiss shall be
denied and the case shall be listed for trial on a date certain. . . .
If, at any time, it is determined that the Commonwealth did not
exercise due diligence, the court shall dismiss the charges and
discharge the defendant.
Pa.R.Crim.P. 600.11
As we have stated:
In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
The proper scope of review is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of
the trial court. An appellate court must view the facts in the light
most favorable to the prevailing party.
11
Rule 600 was rescinded on October 1, 2012 and a new Rule 600 was
promulgated. As both complaints were filed prior to October 1, 2012, this
case is governed by the former Rule 600.
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Commonwealth v. Thompson, 93 A.3d 478, 486–487 (Pa. Super. 2014)
(internal alterations, ellipses, and citation omitted).
Although we review the trial court’s determinations as to whether a
period is excludable time, excusable delay, or attributable to the
Commonwealth for an abuse of discretion, we review all questions of law,
including the application of Rule 600, de novo. Cf. Commonwealth v.
Dixon, 907 A.2d 468, 472 (Pa. 2006) (citation omitted) (whether a
defendant is entitled to release under Rule 600 is a question of law reviewed
de novo). Our scope of review on such questions of law is plenary. See id.
This Court has explained:
To summarize, the courts of this Commonwealth employ three
steps in determining whether Rule 600 requires dismissal of
charges against a defendant. First, Rule 600(A) provides the
mechanical run date. Second, we determine whether any
excludable time exists pursuant to Rule 600(C). We add the
amount of excludable time, if any, to the mechanical run date to
arrive at an adjusted run date.
If the trial takes place after the adjusted run date, we apply the
due diligence analysis set forth in Rule 600. As we have
explained, Rule 600 encompasses a wide variety of
circumstances under which a period of delay was outside the
control of the Commonwealth and not the result of the
Commonwealth’s lack of diligence. Any such period of delay
results in an extension of the run date. Addition of any Rule 600
extensions to the adjusted run date produces the final Rule 600
run date. If the Commonwealth does not bring the defendant to
trial on or before the final run date, the trial court must dismiss
the charges.
Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013), aff’d,
107 A.3d 735 (Pa. 2014) (per curiam) (citation and ellipsis omitted).
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In this case, the mechanical run date was June 27, 2013. On
December 3, 2012, Appellant filed his omnibus pre-trial motion. On June
26, 2013, the trial court ruled on that pretrial motion. When “delay in the
commencement of trial is caused by the filing of the pretrial motion,” that
time is excludable. Commonwealth v. Hyland, 875 A.2d 1175, 1190 (Pa.
Super. 2005), appeal denied, 890 A.2d 1057 (Pa. 2005 (internal quotation
marks and citation omitted). In this case, the delay in Appellant’s trial was
attributable to his pre-trial motion. Thus, at a minimum, the adjusted run
date was January 18, 2014.12 Appellant’s trial commenced well before that
date. Accordingly, the trial court properly denied his Rule 600 motion.
In his fourth issue, Appellant argues that the trial court should have
dismissed the charges because of the Commonwealth’s discovery violations.
As it relates to case 3248, Appellant argues that the Commonwealth
committed two discovery violations. First, he argues that the
Commonwealth failed to furnish a police report that was read to him during
his confession. Second, he argues that videotapes from city cameras were
not furnished to him.
We review a trial court’s order relating to a discovery violation for an
abuse of discretion. See Commonwealth v. Burke, 781 A.2d 1136, 1146
(Pa. 2001). “[W]here there is no evidence of deliberate, bad faith
12
The Commonwealth argues that other time was also excludable. We need
not address those time periods, however, because even if they were not
excludable Appellant was still tried before the adjusted run date.
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overreaching by the prosecutor intended to provoke the defendant into
seeking a mistrial or to deprive the defendant of a fair trial, the proper
remedy for the Commonwealth’s failure to disclose exculpatory materials
should be less severe than dismissal.” Id.
In this case, there was no discovery violation warranting dismissal. As
to the police report, the Commonwealth did produce the report in an
untimely manner; however, there is no evidence of deliberate bad faith on
the part of the Commonwealth. As soon as the Commonwealth realized the
report was in its possession, it turned the report over to Appellant. This
occurred six weeks prior to trial. As to the videotapes from city cameras,
Appellant concedes that he was able to view the videos with his standby
counsel in the district attorney’s office. Appellant’s Brief at 10. This
accommodation was made because Appellant was having difficulty viewing
the videos with the equipment provided in jail. As Appellant was provided
the report and videos at least six weeks prior to trial, Appellant is also
unable to prove any prejudice that resulted from delayed production of the
materials. Accordingly, the Commonwealth did not violate the trial court’s
discovery orders and Appellant was not entitled to dismissal of these
charges.
In his fifth issue, Appellant argues that the evidence was insufficient to
find him guilty. “Whether sufficient evidence exists to support the verdict is
a question of law; our standard of review is de novo and our scope of review
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is plenary.” Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super.
2015) (citation omitted). In reviewing a sufficiency of the evidence claim,
we must determine whether “viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth as the verdict winner, there is
sufficient evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt.” Commonwealth v. Gonzalez, 109
A.3d 711, 716 (Pa. Super. 2015) (internal alteration and citation omitted).
“The evidence does not need to disprove every possibility of innocence, and
doubts as to guilt, the credibility of witnesses, and the weight of the
evidence are for the fact-finder to decide.” Commonwealth v. Forrey, 108
A.3d 895, 897 (Pa. Super. 2015) (citation omitted).
Appellant makes two arguments related to the sufficiency of the
evidence. First, he argues that Negron would have been unable to see him
because of the layout of her house. This argument is without merit. Negron
testified that she saw Appellant fleeing her residence with the laptop. There
was no physical evidence to contradict her testimony and Appellant
presented no expert testimony that it would have been physically impossible
for her to see Appellant given the layout of her residence. Appellant’s
arguments to the contrary go to the weight of the evidence and not its
sufficiency. Thus, there was sufficient evidence that Appellant burglarized
Negron’s residence.
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Second, Appellant argues that there was insufficient evidence
regarding the value of the laptop for purposes of grading the receiving stolen
property offense. This argument is waived. “[T]o preserve a claim that the
evidence was insufficient, [an appellant’s concise] statement needs to
specify the element or elements upon which the evidence was insufficient.”
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008). In
his concise statement, Appellant merely alleged that “[t]he evidence was not
sufficient to support the verdict on all the charges in both cases[.]” Concise
Statement, 7/25/14. Appellant did not specify in his concise statement that
there was insufficient evidence regarding the valuation for the receiving
stolen property conviction in case 3248. The trial court did not address that
element in its Rule 1925(a) opinion. As this deficiency has hampered our
review of Appellant’s claim, we find Appellant’s argument waived. See
Commonwealth v. Orie Melvin, 103 A.3d 1, 42 (Pa. Super. 2014) (citation
omitted).
In his sixth issue, which the trial court described as the crux of this
appeal, Appellant argues that he was prejudiced by the jury having access to
his videotaped confession in the jury room in violation of Pennsylvania Rule
of Criminal Procedure 646. As noted above, the trial court granted Appellant
relief with respect to this claim as it relates to case 3366. The trial court
vacated his judgment of sentence in that case and ordered a new trial. The
trial court determined, however, that the error did not prejudice Appellant as
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it relates to case 3248. Therefore it denied Appellant relief with respect to
that case.
We conclude that Appellant has waived this issue. “Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). “Rule 302(a) has [never] been interpreted as
meaning that issues may be raised at any time during the lower court
proceedings in order to preserve them. Rather, it is axiomatic that issues
are preserved when objections are made timely to the error or offense.”
Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008).
In this case, Appellant did not object to the confession going back with
the jury. See N.T., 11/21/13 v.2, at 4-8.13 Instead, when the jury
requested to view the confession, the trial court sought suggestions on how
to accommodate the request. After some discussion between the jury
foreman, the trial court, the Commonwealth, and Appellant’s counsel, the
DVD of the confession was sent back with the jury to view on a laptop.
When this occurred, the trial court asked if there were any objection.
Defense counsel responded “No[.]”14 Id. at 8.
13
The notes of testimony for November 21, 2013 are divided into two
volumes. We refer to volume 2 as that volume which includes the trial court
adjourning at 10:19 p.m.
14
We note that counsel’s failure to object to the confession going back with
the jury raises a colorable claim of ineffectiveness because, during
Appellant’s confession in case 3366, he referenced case 3248. However, we
leave that issue for post-conviction proceedings.
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Like the trial court, we are unaware of any cases in which this Court or
our Supreme Court found that a defendant waived a Rule 646(C)(2) claim.15
See Trial Court Opinion, 6/27/14, at 6. We find instructive, however, this
Court’s decision in Commonwealth v. Morton, 774 A.2d 750 (Pa. Super.
2001), appeal denied, 788 A.2d 374 (Pa. 2001). In Morton, this Court,
prior to reaching the defendant’s Rule 1114 (later renumbered Rule 646)
issue, emphasized that the appellant had objected prior to the confession
being sent back with the jury. Id. at 752. This indicates that an objection
must be made prior to the confession going out with the jury in order for the
issue to be preserved.
We also find instructive the case cited by the trial court in its opinion.
The trial court, when determining it had erred by sending Appellant’s
confession back with the jury, cited Commonwealth v. Young, 767 A.2d
1072 (Pa. Super 2001). See Trial Court Opinion, 6/27/15, at 5. In Young,
a defendant’s written confession was sent back with the jury without
objection by the defendant. The defendant thereafter filed a post-sentence
motion and the trial court granted a new trial. This Court affirmed. Young,
767 A.2d at 1076. This Court did not affirm, however, because of the trial
court’s error in sending the written confession out with the jury. Instead,
this Court affirmed because the defendant’s counsel was ineffective in failing
15
Rule 646(c)(2) of the Pennsylvania Rules of Criminal Procedure provides,
“(c) during deliberations, the jury shall not be permitted to have…(2) a copy
of any written or otherwise recorded confession by the defendant.”
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to object to the confession going back with the jury. 16 Id. This indicates
that, in order to preserve the issue for a direct appeal, a defendant is
required to object before the confession goes back with the jury.
To the extent the trial court believes Appellant preserved this issue
because he did not affirmatively consent to the confession going back with
the jury, see Trial Court Opinion, 6/27/14, at 6, we disagree. This
misconstrues Rule 302. Under Rule 302, waiver may be found whenever
there has been a failure to place a timely and specific objection on the
record. For example, if hearsay is wrongly admitted at trial, a litigant must
raise a timely objection in order to preserve appellate review of that issue.
Even in the absence of affirmative consent, a litigant waives his appellate
challenge if he fails to raise an objection to the admission of the hearsay
statement. Lower Makefield Tp. v. Lands of Chester Dalgewicz, 67
A.3d 772, 776-777 (Pa. 2013) (citation omitted). The same is true with
respect to a confession going back with the jury in violation of Rule
646(C)(2). The defendant is required to make a timely objection, i.e., an
objection prior to the confession being sent back with the jury. In this case,
Appellant failed to make such an objection. Therefore, Appellant’s sixth
issue on appeal is waived.
16
Young was decided prior to Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002), in which our Supreme Court held that ineffective assistance of
counsel claims could not be raised on direct appeal.
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In his seventh issue, Appellant argues that the trial court erred by
denying him access to Officer Popovich’s personnel file. We conclude that
this issue is waived as it relates to case 3248, the only appeal over which we
have jurisdiction. In his brief, Appellant only argues that Officer Popovich’s
credibility was important in case 3366. See Appellant’s Brief at 14. He
makes no argument as to how Officer Popovich’s credibility was important as
to case 3248. Therefore, Appellant waived this issue as it relates to case
3248. See Pa.R.A.P. 2101, 2119(a).
Furthermore, even if we reached the merits of this issue we would
conclude that it is without merit. We review a trial court’s denial of a
defendant’s requested discovery for an abuse of discretion. Orie Melvin,
103 A.3d at 34–35 (citation omitted). Pennsylvania Rule of Criminal
Procedure 573 provides, in relevant part:
[I]f the defendant files a motion for pretrial discovery, the court
may order the Commonwealth to allow the defendant’s attorney
to inspect and copy or photograph any of the following requested
items, upon a showing that they are material to the preparation
of the defense, and that the request is reasonable . . . any other
evidence specifically identified by the defendant, provided the
defendant can additionally establish that its disclosure would be
in the interests of justice.
Pa.R.Crim.P. 573(A)(2)(a)(iv). A defendant is not entitled to wholesale
inspection of a police officer’s personnel file. Commonwealth v. Mejia-
Arias, 734 A.2d 870, 876 (Pa. Super. 1999). Instead, in order to examine a
police officer’s personnel file, a defendant is required to demonstrate a
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reasonable basis for his request which is likely to produce admissible
evidence. See id.
Appellant argues that Officer Popovich was demoted from detective to
officer during the pendency of these charges. He argues that Officer
Popovich’s personnel file may reveal the reasons for the demotion.
Appellant contends that Officer Popovich’s demotion could be related to
illegal interrogation tactics, similar to those Appellant argues that Officer
Popovich used in the case sub judice.
In denying Appellant’s request, the trial court found that Appellant
failed to present any evidence that Officer Popovich was demoted from
detective to police officer. Trial Court Opinion, 6/26/13, at 8. We conclude
that this finding is not supported by the record. At the suppression hearing,
Officer Popovich testified that he was a detective at the time he interviewed
Appellant but was a patrol officer at the time of the suppression hearing.
N.T., 3/28/13, at 66-67. Thus, Appellant did present evidence that Officer
Popovich was demoted from detective to patrol officer.
The trial court, however, found that even if Officer Popovich were
demoted, Appellant failed to provide any evidence that Officer Popovich was
demoted for conduct related to interrogations, i.e., anything that would be
relevant. See id. We ascertain no abuse of discretion on the part of the
trial court in reaching this alternative holding. On appeal, Appellant points
to no evidence that connects Officer Popovich’s demotion to the conduct of
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the interrogation. Thus, even if we reached the merits of this issue, we
would conclude Appellant is not entitled to relief.
In his eighth and ninth issues, Appellant argues that the trial court
erred in denying his motion to suppress. He argues that his confessions
should have been suppressed because the police officers interrogating him
offered leniency in return for his confessions. Appellant further argues that
the trial court erred in not suppressing the contents of his bags. He argues
that police lacked probable cause to pursue him and that his abandonment
of the bags was forced.
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.” Commonwealth v.
Garibay, 106 A.3d 136, 138 (Pa. Super. 2014) (citation omitted). “[O]ur
scope of review is limited to the factual findings and legal conclusions of the
suppression court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation
omitted). “We may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole.” Commonwealth v. Gary, 91 A.3d
102, 106 (Pa. 2014) (citation omitted). “Once a defendant files a motion to
suppress, the Commonwealth has the burden of proving that the evidence in
question was lawfully obtained without violating the defendant’s rights.”
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Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation
omitted).
We first consider whether the trial court erred in denying Appellant’s
suppression motion as it relates to his confessions. As noted above, we lack
jurisdiction to consider the suppression of the confession in case 3366.
Thus, we focus on the confession in case 3248. “A confession obtained
during a custodial interrogation is admissible where the accused’s right to
remain silent and right to counsel have been explained and the accused has
knowingly and voluntarily waived those rights.” Commonwealth v.
Harrell, 65 A.3d 420, 433 (Pa. Super. 2013), appeal denied, 101 A.3d
785 (Pa. 2014) (citation omitted). “When a court is called upon to determine
whether a confession is voluntary and, hence, admissible at trial, it examines
the totality of the circumstances surrounding the confession to ascertain
whether it is the product of an essentially free and unconstrained choice by
its maker.” Commonwealth v. Smith, 85 A.3d 530, 537 (Pa. Super. 2014)
(citation omitted). “The question of voluntariness is not whether the
defendant would have confessed without interrogation, but whether the
interrogation was so manipulative or coercive that it deprived the defendant
of his ability to make a free and unconstrained decision to confess.”
Commonwealth v. Ogrod, 839 A.2d 294, 320 (Pa. 2003) (citation
omitted). Among the factors we consider when assessing the totality of the
circumstances are “the duration and means of the interrogation; the physical
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and psychological state of the accused; the conditions attendant to the
detention; the attitude of the interrogator; and any and all other factors that
could drain a person’s ability to withstand suggestion and coercion.”
Commonwealth v. Templin, 795 A.2d 959, 966 (Pa. 2002). “Promises of
benefits or special considerations, however benign in intent, comprise the
sort of persuasions and trickery which easily can mislead suspects into
giving confessions.” Commonwealth v. Morgan, 606 A.2d 467, 469 (Pa.
Super. 1992), aff’d, 652 A.2d 295 (Pa. 1994) (citation omitted).
We have carefully reviewed the videotaped confession, other exhibits
entered into evidence at the suppression hearing, and the notes of testimony
from the suppression hearing. After reviewing those materials, we conclude
that Appellant’s confession was voluntary. Detective Hackman begin the
interview by informing Appellant that he could not make any promises. He
also informed Appellant that he was under arrest. Detective Hackman
proceeded to inform Appellant of his right to remain silent, his right to speak
with an attorney, his right to have an attorney present, and his right to stop
the interview at any time. Appellant then signed an “Advice of Rights” form
which outlined these rights. Suppression Hearing Exhibit 1. Detective
Hackman informed Appellant that the district attorney appreciates full
cooperation and truthfulness. The interrogation then continued and
Appellant eventually confessed to stealing Negron’s laptop.
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Based upon this review of the confession, all of the Templin factors
weigh in favor of finding Appellant’s confession voluntary. The interrogation
was relatively short, approximately 25 minutes in length. There were no
other police officers in the room except Detective Hackman. Appellant was
not in handcuffs. Appellant informed Detective Hackman that he was in
good physical and mental shape. The interrogation occurred in a normal
sized room with a table, four chairs, and a telephone. Furthermore,
Detective Hackman and Appellant had a previous relationship as Detective
Hackman was investigating a crime in which Appellant was the victim.
Detective Hackman did inform Appellant that the district attorney
appreciates full cooperation. This statement, however, is not an offer of
leniency in exchange for Appellant’s confession. Instead, this type of
statement is permitted in Pennsylvania. Commonwealth v. Nester, 709
A.2d 879, 884 (Pa. 1998) (citations omitted) (“Encouraging a suspect to
cooperate with the investigation and answer questions honestly is a
permissible interrogation tactic.”). Detective Hackman never promised
leniency or special benefits. Instead, he informed Appellant that he “can’t
make any promises.” Suppression Hearing Exhibit 2, at 1:50:20-1:50:30.17
Accordingly, after considering the totality of the circumstances, we agree
with the trial court that Appellant’s confession was voluntary.
17
We cite to the time stamp appearing on Appellant’s videotaped confession.
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We thus turn to Appellant’s argument that the trial court erred in not
suppressing the bags he abandoned. Specifically, Appellant argues that
Officer Mancini lacked probable cause to pursue him. Thus, according to
Appellant, his abandonment of the bags was forced. Appellant contends that
he maintained a privacy interest in the abandoned bags and the police
search of the bags was unconstitutional. The Commonwealth argues that
Officer Mancini possessed reasonable suspicion to pursue Appellant.
Consequently, the Commonwealth maintains, Appellant’s forced
abandonment claim must fail.
“Both the Fourth Amendment to the United States Constitution and
Article I, § 8 of the Pennsylvania Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. Gillespie, 103
A.3d 115, 118 (Pa. Super. 2014) (citation omitted). “To safeguard these
rights, courts require police to articulate the basis for their interaction with
citizens in three increasingly intrusive situations.” Commonwealth v.
Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal alterations,
quotation marks, and citation omitted).
The first of these is a mere encounter (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an investigative detention must be
supported by a reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or custodial detention must be
supported by probable cause.
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Commonwealth v. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014), appeal
denied, 117 A.3d 296 (Pa. 2015) (internal alteration, quotation marks, and
citation omitted).
“It is axiomatic that a defendant has no standing to contest the search
and seizure of items which he has voluntarily abandoned.” Commonwealth
v. Byrd, 987 A.2d 786, 790 (Pa. Super. 2009). “Abandonment can be
established where an individual’s surrender of possession of the property
constitutes such a relinquishment of interest in the property that a
reasonable expectation of privacy may no longer be asserted.”
Commonwealth v. Clark, 746 A.2d 1128, 1134 (Pa. Super. 2000), appeal
denied, 764 A.2d 1064 (Pa. 2000) (internal alteration and citation omitted).
“Although abandoned property may normally be obtained and used for
evidentiary purposes by the police, such property may not be utilized where
the abandonment is coerced by unlawful police action.” Commonwealth v.
Tillman, 621 A.2d 148, 150 (Pa. Super. 1993) (citation omitted).
In this case, Officer Mancini testified that he exited his patrol vehicle
and asked Appellant if he could speak with him. It is well-settled that a
police officer may approach an individual in public and ask to speak to him
or her without raising the interaction from a mere encounter to an
investigative detention a custodial detention. Commonwealth v. Guess,
53 A.3d 895, 901 (Pa. Super. 2012), appeal denied, 67 A.3d 794 (Pa.
2013); Commonwealth v. Au, 42 A.3d 1002, 1007 (Pa. 2012);
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Commonwealth v. Coleman, 19 A.3d 1111, 1116-1117 (Pa. Super. 2011).
Thus, when Officer Mancini asked to speak with Appellant, their interaction
was a mere encounter.
Upon hearing Officer Mancini’s request, Appellant immediately begin
sprinting away from Officer Mancini. At this point, Officer Mancini gave
chase. As soon as Officer Mancini gave chase, the encounter escalated to an
investigative detention. See Commonwealth v. Matos, 672 A.2d 769,
771–776 (Pa. 1996). Thus, we turn to whether there was reasonable
suspicion for Officer Mancini’s pursuit.
As this Court has explained:
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of
reliability in the totality of the circumstances. . . . In assessing
the totality of the circumstances, courts must also afford due
weight to the specific, reasonable inferences drawn from the
facts in light of the officer’s experience and acknowledge that
innocent facts, when considered collectively, may permit the
investigative detention.
The determination of whether an officer had reasonable
suspicion . . . is an objective one, which must be considered in
light of the totality of the circumstances.
Clemens, 66 A.3d at 379 (ellipsis and citation omitted).
Based upon the totality of the circumstances, we conclude that
reasonable suspicion existed for Officer Mancini’s pursuit of Appellant.
Officer Mancini received a radio call that a burglary just occurred. A fellow
police officer informed Officer Mancini of the direction the suspect was last
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seen running. Officer Mancini was informed that the suspect was an African-
American male wearing black shorts and a white t-shirt. Officer Mancini also
knew the burglar stole a laptop computer. Officer Mancini then spotted
Appellant (an African-American male) wearing a gray t-shirt, black shorts,
and carrying a laptop computer bag. Officer Mancini therefore exited his
vehicle and asked if he could speak with Appellant. It was at this time that
Appellant sprinted away from Officer Mancini and the foot pursuit began.
Appellant makes two main arguments as to why this information did
not constitute reasonable suspicion. First, he argues that he was walking,
and not running. This, however, is insufficient to overcome the substantial
circumstantial evidence Officer Mancini possessed. The fact that Appellant
challenges the characterization of his pace does not mean that he did not fit
the description of the suspect. Second, Appellant argues that because he
was wearing a gray t-shirt, and not a white t-shirt, he did not match the
suspect’s description. White and gray, however, can easily be confused with
each other. When evaluating the totality of the suspect’s description, it is
evident that Appellant sufficiently matched the description of the suspect to
give Officer Mancini reasonable suspicion once Appellant fled for no apparent
reason. Furthermore, Officer Mancini testified at the suppression hearing
that, in his experience, it was not uncommon for suspects to change shirts
after committing a crime. Therefore, we conclude that reasonable suspicion
existed for Officer Mancini’s pursuit of Appellant. Thus, Appellant’s
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abandonment of his bags was not forced. Accordingly, Appellant did not
have a privacy interest in the bags and the trial court properly denied his
motion to suppress.
In his tenth issue, Appellant argues that the trial court erred by
granting the Commonwealth’s motion in limine. He argues that he should
have been able to cross-examine Officer Popovich regarding his demotion.
He further argues that he should have been able to present evidence and
argument relating to the Commonwealth’s alleged discovery violations.
“When reviewing a ruling on a motion in limine, we apply an evidentiary
abuse of discretion standard of review. The admission of evidence is
committed to the sound discretion of the trial court and our review is for an
abuse of discretion.” Commonwealth v. Parker, 104 A.3d 17, 21 (Pa.
Super. 2014), appeal denied, 117 A.3d 296 (Pa. 2015) (citation omitted).
“[A] police witness [may] be cross-examined about misconduct as
long as the wrongdoing is in some way related to the defendant’s underlying
criminal charges and establishes a motive to fabricate.” Commonwealth v.
Bozyk, 987 A.2d 753, 757 (Pa. Super. 2009) (citations omitted). “However,
if the prior police behavior is unrelated to the present matter and irrelevant,
the trial court is permitted to restrict questioning on the prior incident.” Id.
(citations omitted).
In this case, Appellant presented no evidence as to how Officer
Popovich’s alleged demotion was related to his case. He presents two
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theories as to how Officer Popovich’s alleged demotion was related to his
case. First, he argues that Officer Popovich was demoted because of
inadequate job performance. Appellant has no evidence to support this
claim.
Appellant also argues that Officer Popovich’s demotion may have
shown a pattern of lying which would go to his credibility. Appellant offered
no proof of this claim. Moreover, Appellant’s generalized claim has been
previously rejected. See id. at 758; Commonwealth v. Boczkowski, 846
A.2d 75, 96 (Pa. 2004) (collateral matters are irrelevant and inadmissible on
cross-examination). The same is true in this case. Officer Popovich’s
demotion was collateral to the issues in this case. Accordingly, the trial
court did not abuse its discretion in limiting Appellant’s cross-examination of
Officer Popovich.
Appellant also argues that the trial court erred in barring evidence
regarding alleged discovery violations. As noted above, however, the trial
court ruled (and we affirm today) that no discovery violations occurred. As
such, we conclude that the trial court did not abuse its discretion in
prohibiting Appellant from presenting evidence relating to the alleged
discovery violations.
Finally, Appellant contends that the conviction is against the weight of
the evidence. A challenge to the weight of the evidence must first be raised
at the trial level “(1) orally, on the record, at any time before sentencing;
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(2) by written motion at any time before sentencing; or (3) in a post-
sentence motion.” In re J.B., 106 A.3d 76, 97 (Pa. 2014) (citation
omitted). Appellant properly preserved his weight of the evidence claim by
raising the issue in his post-sentence motion.
“[A] new trial based on a weight of the evidence claim is only
warranted where the jury’s verdict is so contrary to the evidence that it
shocks one’s sense of justice.” Tejada, 107 A.3d at 795–796 (internal
alteration and citation omitted). “[W]e do not reach the underlying question
of whether the verdict was, in fact, against the weight of the evidence. . . .
Instead, this Court determines whether the trial court abused its discretion
in reaching whatever decision it made on the motion[.]” Commonwealth
v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted).
When ruling on Appellant’s weight of the evidence claim, the trial court
concluded, “The verdict in this case does not shock one's sense of justice.
The jury evidently considered and weighed all the evidence presented,
determined witness credibility, and found that the Commonwealth met its
burden. The jury’s verdict is adequately supported by the credible evidence
presented at trial[.]” Trial Court Opinion, 6/27/14, at 8. We ascertain no
abuse of discretion in this determination. Appellant confessed to stealing
Negron’s laptop. His explanation for the theft during his confession, that he
stole it from the stairs of her back porch, was nonsensical. Negron’s
description of the events, on the other hand, made sense and was consistent
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with the physical evidence. Accordingly, we will not disturb the trial court’s
ruling on Appellant’s weight of the evidence claim.
In sum, we conclude that we lack jurisdiction over the claims related
to case 3366 as no final appealable order has been entered as to those
claims. As to case 3248, we conclude that Appellant is not entitled to relief
on any of his claims. Accordingly, we quash in part and affirm in part.
Appeal quashed as to case 3366. Judgment of sentence affirmed in
case 3248.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2015
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