J-A31030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KALI A. SMITH
Appellant No. 1645 MDA 2014
Appeal from the Judgment of Sentence September 2, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001740-2013
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 05, 2016
Kali A. Smith appeals from the judgment of sentence imposed by the
Court of Common Pleas of Berks County following his convictions for two
counts of robbery,1 two counts of conspiracy to commit robbery,2 one count
of burglary,3 and one count of conspiracy to commit burglary.4 After careful
review, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(ii), (iv).
2
18 Pa.C.S § 903(a)(1).
3
18 Pa.C.S. § 3502(a).
4
18 Pa.C.S. § 903(a)(1).
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The underlying facts are as follows. On March 30, 2012, at
approximately 1:20 p.m., a robbery occurred at an off-campus apartment
near Kutztown University. Borough of Kutztown police officers arrested
Christopher Biney, Anthony Battle and Jesse Thomas, all of whom identified
Smith as a participant in the robbery. Todd Dawson was subsequently
arrested as well.
Almost a year later, on March 28, 2013, Corporal P. Michael Clery, Jr.
arrested Smith, who at the time was a nineteen-year-old football player at
Kutztown University. The arrest occurred at approximately 7:00 a.m. in the
office of the football coach. Pennsylvania State Trooper Alyssa Becker and
Corporal Justin Soumas of the Kutztown University Police were also present
at the arrest.
Smith asked police to retrieve items from his unsecured locker.
Corporal Soumas directed the coach to bring him the items, which included
Smith’s set of keys, a student identification card and a cell phone. Corporal
Soumas gave the cell phone to Corporal Clery, who retained it as evidence.
Corporal Clery and Trooper Becker then transported Smith to the
Kutztown Police Department.
At approximately 7:15 a.m., Corporal Clery removed his firearm, put it
in a safe, brought Smith into the cell block area and removed his handcuffs.
Smith was alone in the cell block for approximately fifteen minutes while
Corporal Clery went to get some paperwork. When Corporal Clery returned,
he shackled Smith’s feet and brought him to an interview room down the
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hall where Trooper Becker and Corporal Soumas were also present.
Although Trooper Becker and Corporal Soumas were armed they did not
display their weapons to Smith.
Corporal Clery read the Kutztown Borough Police Department
Miranda5 rights form to Smith, and then handed it to him to review.
Corporal Clery asked Smith if he understood his rights, and Smith nodded
his head up and down. Corporal Clery asked Smith to sign the Miranda
rights form and Smith indicated that he did not want to sign it.
Corporal Clery began questioning Smith about the March 30, 2012
robbery. Smith stated that he was unaware of the incident and that he did
not know Biney, Thomas, Battle or Dawson. The interview concluded when
Smith indicated that he did not want to speak anymore.
Based on Smith’s statement during the interview that he did not know
Biney, Corporal Cleary obtained a warrant for Smith’s cellular phone records.
In the affidavit of probable cause, Corporal Clery averred that a previous
search of Biney’s cellphone had yielded “Smith, Kali” as a contact.
Smith filed an omnibus pretrial motion seeking to suppress Smith’s
statements and the evidence seized. The trial court held a hearing on
August 9, 2013, and denied the motion by order dated August 27, 2013.
The court concluded that police properly obtained and searched his cell
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5
Miranda v. Arizona, 384 U.S. 436 (166).
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phone, Smith understood his Miranda rights and that “the answers he gave
to the questions posed by police were knowingly, intelligently, and
voluntarily given and, therefore admissible.” Findings of Fact and
Conclusions of Law, 8/27/13, at 4.
The matter proceeded to trial on August 6, 2014, and on August 8,
2014, a jury convicted Smith of the above-referenced offenses. At a hearing
on September 2, 2014, the court imposed an aggregate sentence of six to
twelve years’ incarceration.
This timely appeal followed in which Smith raises the following issues
for our review:
1. Should the lower court have suppressed [Smith’s] statements
and all evidence derived therefrom where the investigating
officer did not secure a knowing, voluntary, and intelligent
waiver of [Smith’s] Miranda rights before continuing to
pepper him with interrogative questions?
2. Should this Court remand this matter to the trial court for a
hearing on after discovered evidence in the form of a [signed
statement] implicating alleged co-conspirator’s recantation of
his trial testimony?
Appellant’s Brief, at 4.
With respect to Smith’s first issue, our Supreme Court has stated:
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
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may reverse only if the court’s legal conclusions are erroneous.
Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, 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. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and
quotations omitted).
Regardless of whether a waiver of Miranda is voluntary, the
Commonwealth must prove by a preponderance of the evidence
that the waiver is also knowing and intelligent.
Miranda holds that “[t]he defendant may waive effectuation” of
the rights conveyed in the warnings “provided the waiver is
made voluntarily, knowingly and intelligently.” The inquiry has
two distinct dimensions. First, the relinquishment of the right
must have been voluntary in the sense that it was the product of
a free and deliberate choice rather than intimidation, coercion or
deception. Second, the waiver must have been made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it. Only if the
“totality of the circumstances surrounding the interrogation”
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that Miranda
rights have been waived.
In the Interest of T.B., 11 A.3d 500, 505 (Pa. Super. 2010) (citations
omitted).
In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), our
Supreme Court noted:
[A]n explicit waiver . . . after being advised of [one’s] Miranda
rights . . . is not necessary to a finding of waiver under the Fifth
Amendment. North Carolina v. Butler, 441 U.S. 369, 373
(1979). The pertinent question is “whether the defendant in fact
knowingly and voluntarily waived the rights delineated in the
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Miranda case.” Id. “Waiver can be clearly inferred from the
actions and words of the person interrogated.” Id.
Bomar, 826 A.2d. at 843.
The test for determining . . . the validity of a waiver looks to the
totality of the circumstances. Some of the factors to be
considered include: the duration and means of interrogation;
the defendant’s physical and psychological state; the conditions
attendant to the detention; the attitude exhibited by the police
during the interrogation; and any other factors which may serve
to drain one’s powers of resistance to suggestion and coercion.
Commonwealth v. DeJesus, 787 A.2d 394, 403 (Pa. 2001) (citations
omitted).
With respect to the totality of the circumstances in the instant matter,
it is clear that Smith was in custody. However, there is nothing in the record
indicating that the police acted in a suggestive or coercive matter. No
threats or promises were made and no intimidation occurred. N.T. Pretrial
Hearing, 8/9/13, at 19. Although two out of three officers present were
armed, neither of them displayed their weapon. Id. at 19, 43, 54. All of the
officers were seated at the table with Smith, not standing over him. Id. at
13. Smith’s legs were shackled, but his arms were not. Id. The entire
interview lasted approximately thirty minutes. Id. at 37. Smith did not
appear to be under the influence of drugs or alcohol. Id. at 20, 45, 55.
Before questioning Smith about the charges, Corporal Clery read the
Miranda rights to him from a preprinted form. Id. at 16. Corporal Clery
then asked Smith if he understood his rights, to which Smith responded by
nodding his head up and down. Id. Corporal Cleary then read to Smith the
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waiver portion of the Miranda rights form. When Smith said, “I don’t want
to sign anything,” Smith replied, “You don’t need to sign it. That’s okay.”
Id. at 17. Corporal Clery testified, “I proceeded with questioning him at that
point.” Id.
Significantly, this Court has held that “after a defendant is given his or
her Miranda rights, a statement by the defendant that he understands
those rights followed by the answering of questions posed by the
interrogating officer constitutes a sufficient manifestation of a defendant’s
intent to waive those rights so as to satisfy state constitutional protections.”
Commonwealth v. Baez, 21 A.3d 1280, 1286 (Pa. Super. 2011).
In light of the fact that Smith acknowledged that he understood his
Miranda rights by nodding his head up and down (the non-verbal equivalent
of expressing assent), and the interview ended when Smith stated that he
did not want to talk anymore, we conclude that the trial court did not err as
a matter of law when it determined that Smith’s statements were
admissible.
Smith filed a timely appeal of his judgment of sentence on September
30, 2014. “In late October 2014,” Appellant’s Brief, at 15, Smith obtained a
signed statement by Battle dated October 21, 2014, in which Battle states
that he planned and committed the robbery with Biney and Thomas. He
further avers that they falsely implicated Smith and Dawson in the crime
even though “they really didn[’]t have anything to do with the whole thing.”
Statement of Anthony Battle, 10/21/14, at 1.
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On February 6, 2015, Smith filed a motion for a new trial based on
after-discovered evidence, which the trial court properly deemed it had no
jurisdiction to consider in light of the September 30, 2014 notice of appeal
from Smith’s judgment of sentence.
On February 18, 2015, Smith filed in this Court a request for remand
to the trial court to consider his application for a new trial based on after-
discovered evidence.
Pa.R.CrimP. 702(C) provides that “[a] post sentence motion for a new
trial on the ground of after-discovered evidence must be filed in writing
promptly after such discovery.” The comment to Rule 720 provides, in
relevant part:
Paragraph (C) requires that any claim of after-discovered
evidence must be raised promptly after its discovery.
Accordingly, . . . after-discovered evidence discovered during the
direct appeal process must be raised promptly during the direct
appeal process, and should include a request for a remand to the
trial judge.
Pa.R.Crim.P. 720(C), comment.
The Commonwealth argues that Smith is not entitled to relief because
he failed to raise his after-discovered evidence claim promptly. We agree.
As noted, Smith became aware of Battle’s statement in late October 2014.
Even if we assume this occurred on October 31, 2014, Smith did not file his
petition in this Court until February 18, 2015, which is 110 days after he
became aware of the evidence. Although the Rules of Criminal Procedure do
not define the term “promptly,” Rule 101(C) provides that “to the extent
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practicable these rules shall be construed in consonance with the rules of
statutory construction.” Pa.R.Crim.P. 101(C). Section 1903(a) of the
Statutory Construction Act of 1972, provides in relevant part, “words and
phrases shall be construed according to their common and approved usage.”
1 Pa.C.S. § 1903(a). “Promptly” is defined as “with little or no delay.” The
Free Dictionary, http://www.thefreedictionary.com/promptly (last visited
Dec. 10, 2015). We have no difficulty concluding that a period of 110 days
does not constitute little or no delay.
Furthermore, we note that in the context of the Post Conviction Relief
Act,6 a petition seeking an after-discovered evidence exception to the
timeliness requirement of the Act must be “filed within 60 days of the date
the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Because we conclude Smith did not file his petition for remand
promptly, we are precluded from granting relief.
Judgment of sentence affirmed. Request for remand denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
____________________________________________
6
42 Pa.C.S. §§ 9541-9546.
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