Commonwealth v. Mickel

J-S33026-16

2016 PA Super 132

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JULLIAN MICKEL

Appellant No. 1459 WDA 2015

Appeal from the Order August 31, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000527-2015

BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

OPINION BY OLSON, J.: FILED JUNE 22, 2016

Appellant, Jullian Mickel, appeals from the judgment of sentence

entered on August 31, 2015, as made final by the denial of Appellant’s post-

sentence motion on September 16, 2015. We affirm.

In December 2014, Appellant was arrested and charged with a number

of crimes that arose out of a shooting. As averred in the affidavit of

probable cause:

On [November 29, 2014,] at approximately [1:23 a.m.,
witness A’Jaza Mathis (“Ms. Mathis”)] went to [a strip club
named Juliet’s Gentlemen’s Club (“Juliet’s”) in Erie,
Pennsylvania]. [Ms.] Mathis’ car was in the parking spot
that is at the southwest corner of the establishment.
[There] was a dark colored car parked directly in front of
hers parked perpendicular.

[Ms.] Mathis went to the door of [Juliet’s] in order to enter
into [Juliet’s]. As [Ms.] Mathis was at the doorway[,] she
observed [Appellant] inside trying to exit from inside
[Juliet’s]. [Ms.] Mathis realized something was happening

*Former Justice specially assigned to the Superior Court.
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that she did not want to be a part of so she went back to
her car. While [Ms.] Mathis was in the backseat of her car
she witnessed [Appellant] walk by and [go to] the dark
colored car. [Ms.] Mathis witnessed [Appellant go to] the
back driver side of the dark colored car parked
perpendicular to her car.

[Ms.] Mathis then witnessed [Appellant] come out from the
dark colored car in a crouched position. [Ms.] Mathis
watched [Appellant] outstretch with both of his hands a
handgun, slowly stand up, [and] point the gun east[-
]bound. [Ms.] Mathis witnessed [Appellant] right in front of
her car. [Ms.] Mathis then looked towards the door area of
[Juliet’s] and witnessed Jaree Warren exit from inside of the
establishment. As Jaree Warren was exiting the
establishment[,] . . . [Ms.] Mathis witnessed [Appellant]
shoot the handgun several times towards Jaree Warren.
[Ms.] Mathis witnessed [Appellant] wearing black gloves
and a black hoody while holding the black handgun.

[Ms.] Mathis witnessed Jaree Warren start running away
from [Appellant in a southeasterly direction] across [W]est
8th [S]treet towards Country Fair. [Ms.] Mathis witnessed
[Appellant] moving backwards [in a westerly direction] as
he was firing the handgun at Jaree Warren. [Ms.] Mathis
was close enough to the shooting that her ears were ringing
from the shots being fired by [Appellant]. [Ms.] Mathis
started panicking attempting to pull away from the parking
spot to avoid the shooting and for her safety. [Ms.] Mathis
headed west to get out of the area.

Affidavit of Probable Cause, 12/17/14, at 1.

On the eve of trial, Appellant filed a motion in limine, requesting that

the trial court exclude a recorded telephone conversation that occurred

between Appellant, a person named Marquise Barnett (who was an inmate in

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the Erie County Prison) (“Inmate Barnett”), and “several other individuals.”1

Appellant alleged:

The initial [telephone call was placed by Inmate Barnett,
from the Erie County Prison. The initial telephone
recording] informs the call recipient that the call is subject
to “recording and monitoring.” During the calls, [Inmate
Barnett] asks the initial call recipients to call other
individuals. The call recipients accommodate [Inmate
Barnett’s] request and calls were placed either using [three-
]way or by other means so that [Inmate Barnett] could
speak with individuals other than the initial call recipient,
including an individual who [the Commonwealth alleges was
Appellant]. During those third, and sometimes fourth-party
conversations, statements were made that the
Commonwealth opines support the allegations [against
Appellant].

Appellant’s Motion in Limine, 7/13/15, at 1 (internal paragraphing omitted).

Appellant demanded that the recorded telephone conversations be

excluded at trial because Appellant never received notice that the telephone

conversation was subject to recording and monitoring. Appellant claimed

that he thus never gave “prior consent to [the] interception” of his oral

communication and that the interception violated Pennsylvania’s Wiretap

Act. Id. at 2; see also 18 Pa.C.S.A. § 5721.1(b) (concerning a motion to

exclude, from a court proceeding, the contents of an illegally intercepted

wire, electronic, or oral communication).

____________________________________________

1
Although Appellant’s motion in limine did not specify the date upon which
the recorded telephone conversation took place, the evidence demonstrates
that the recorded telephone conversation occurred on December 1, 2014.

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The trial court denied Appellant’s motion in limine and Appellant

proceeded to a jury trial, where witness A’Jaza Mathis testified consistently

with the statements that were recounted in the affidavit of probable cause.

See N.T. Trial, 7/15/15, at 35-82.

Moreover, during trial, the Commonwealth played a recorded

telephone conversation between Appellant and Inmate Barnett, which was

recorded on December 1, 2014, two days after the shooting. The recording

began with Inmate Barnett placing a telephone call from inside the Erie

County Prison, to an unknown female individual. Prior to accepting Inmate

Barnett’s call, a recorded voice informed the female recipient that the

telephone call was being placed by an inmate at the Erie County Prison and

that the call was subject to recording and monitoring. The female accepted

the call and Inmate Barnett told the female recipient to call a person named

“Mumu” on her telephone, so that Inmate Barnett could speak with Mumu

via a three-way line. The female recipient then telephoned Mumu and

placed him directly on the call with Inmate Barnett.

When Mumu was on the phone, Inmate Barnett told Mumu to

telephone Appellant and place Appellant on a three-way conversation with

them.2 Appellant entered into the conversation and Inmate Barnett asked
____________________________________________

2
In the recording, Inmate Barnett did not use Appellant’s name; rather, he
told “Mumu” to telephone “Juice.” However, during trial, Detective Gregory
L. Baney, Jr. identified “Juice” as Appellant. N.T. Trial, 7/15/15, at 91.

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Appellant to explain “what happened.” Appellant declared that, at some

time prior, Jaree Warren was “looking at [him] funny.” Appellant told

Inmate Barnett that “the next night,” he and a group of individuals went to a

nightclub called the Metropolitan. Appellant stated that he saw Jaree Warren

at the Metropolitan and immediately got into an altercation with Warren.

Following the altercation, Appellant left with his group of friends and they

picked up a “jones” – which Detective Baney testified at trial was “street

lingo for a gun.” N.T. Trial, 7/15/15, at 94. Appellant told Inmate Barnett

that they then traveled to “the strip club.” According to Appellant, when he

was attempting to leave the strip club, he again saw Jaree Warren; Appellant

declared that Warren and Warren’s group of friends jumped and beat

Appellant.

The jury found Appellant guilty of aggravated assault, firearms not to

be carried without a license, possession of instruments of crime, and

recklessly endangering another person.3, 4, 5, 6 On August 31, 2015, the trial

____________________________________________

3
18 Pa.C.S.A. §§ 2702(a)(4), 6106(a)(1), 907(a), and 2705, respectively.
4
The trial court also found Appellant guilty of the summary offense of
“firearms discharge prohibited.” City of Erie, Erie County, Pa. Gen. Offenses
Code, Art. 725.05.
5
The jury found Appellant not guilty of attempted homicide.
6
Jaree Warren, the victim in this case, died on December 6, 2014. N.T.
Trial, 7/15/15, at 102.

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court sentenced Appellant to serve an aggregate term of 72 to 144 months

in prison for his convictions. N.T. Sentencing, 8/31/15, at 12-14.

Following the denial of Appellant’s post-sentence motion, Appellant

filed a timely notice of appeal to this Court. Appellant raises two claims on

appeal:

[1.] Whether the trial court erred in denying [] Appellant’s
motion in limine pertaining to the admissibility of
intercepted prison recordings[?]

[2.] Whether the evidence was sufficient to find [] Appellant
guilty of the charges where the Commonwealth’s entire case
was based off of one unreliable eye witness[?]

Appellant’s Brief at 3 (internal capitalization omitted).

Appellant first claims that the trial court erred when it denied his

motion in limine to exclude the recorded, December 1, 2014 telephone

conversation. This claim fails.

We have explained:

[Our] standard of review for a trial court’s evidentiary
rulings is narrow. The admissibility of evidence is solely
within the discretion of the trial court and will be reversed
only if the trial court has abused its discretion. An abuse of
discretion is not merely an error of judgment, but is rather
the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the
evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (internal

quotations and citations omitted). Moreover, “[t]o constitute reversible

error, an evidentiary ruling must not only be erroneous, but also harmful or

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prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d

74, 81 (Pa. Super. 2012) (internal quotations and citations omitted).

Interpreting the language of Pennsylvania’s Wiretap Act is a pure

question of law and thus demands a de novo standard of review.

Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008).

As our Supreme Court explained, “Pennsylvania’s Wiretap Act is

generally modeled after the federal analogue, 18 U.S.C. §§ 2510-2520. The

federal legislation authorizes states to adopt coordinate statutes permitting

the interception of wire, oral, or electronic communications and to grant

greater, but not lesser, protection than that available under federal law.”

Commonwealth v. Spangler, 809 A.2d 234, 237 (Pa. 2002) (internal

citations omitted). Further, since Pennsylvania’s Wiretap Act “emphasizes

the protection of privacy,” “the provisions of the Wiretap Act [must be]

strictly construed.” Id.

Our interpretation of the Wiretap Act necessarily begins with the

statutory language.

The Wiretap Act generally prohibits the intentional interception,

disclosure, or use of a “wire, electronic or oral communication.” 18

Pa.C.S.A. § 5703. However, the Wiretap Act contains enumerated

“exceptions to [the] prohibition of interception and disclosure of

communications.” In relevant part, 18 Pa.C.S.A. § 5704 declares:

It shall not be unlawful and no prior court approval shall be
required under this chapter for:

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...

(14) An investigative officer, a law enforcement officer or
employees of a county correctional facility to intercept,
record, monitor or divulge any telephone calls from or to an
inmate in a facility under the following conditions:

(i) The county correctional facility shall adhere to the
following procedures and restrictions when intercepting,
recording, monitoring or divulging any telephone calls
from or to an inmate in a county correctional facility as
provided for by this paragraph:

(A) Before the implementation of this paragraph, all
inmates of the facility shall be notified in writing
that, as of the effective date of this paragraph, their
telephone conversations may be intercepted,
recorded, monitored or divulged.

(B) Unless otherwise provided for in this paragraph,
after intercepting or recording a telephone
conversation, only the superintendent, warden or a
designee of the superintendent or warden or other
chief administrative official or his or her designee, or
law enforcement officers shall have access to that
recording.

(C) The contents of an intercepted and recorded
telephone conversation shall be divulged only as is
necessary to safeguard the orderly operation of the
facility, in response to a court order or in the
prosecution or investigation of any crime.

(ii) So as to safeguard the attorney-client privilege, the
county correctional facility shall not intercept, record,
monitor or divulge any conversation between an inmate
and an attorney.

(iii) Persons who are calling into a facility to speak to an
inmate shall be notified that the call may be recorded or
monitored.

(iv) The superintendent, warden or a designee of the
superintendent or warden or other chief administrative

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official of the county correctional system shall
promulgate guidelines to implement the provisions of
this paragraph for county correctional facilities.

18 Pa.C.S.A. § 5704.

On appeal, Appellant does not claim that the Erie County Prison or a

law enforcement officer violated or failed to follow any of the above listed

conditions. More specifically, Appellant does not claim: that the prison

failed to notify Inmate Barnett “in writing that . . . [his] telephone

conversations may be intercepted, recorded, monitored or divulged;” that an

unauthorized person had access to the telephone recording after it was

made; or, that the “superintendent, warden or . . . other chief administrative

official in the county correctional system [failed to] promulgate guidelines to

implement the provisions of” 18 Pa.C.S.A. § 5704(14). Moreover, Appellant

was not Inmate Barnett’s attorney, Appellant did not “call[] into [the]

facility,” and the contents of the intercepted conversation were divulged “as

[] necessary . . . in the prosecution or investigation of [a] crime.” 18

Pa.C.S.A. § 5704(14).

Rather, on appeal, Appellant simply claims that “he did not [hear] the

recorded message played at the beginning of the call[,] notifying [the

recipient of Inmate Barnett’s call] that [the call] would be recorded.”

Appellant’s Brief at 7-8. According to Appellant, because he was not notified

of the recording, he did not give his consent to the recording and, because

of this, the recording violated the Wiretap Act and the admission of the

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recording at trial was in error. Id. at 6-8; see also 18 Pa.C.S.A.

§ 5721.1(b).

Appellant’s claim fails based upon the plain language of the Wiretap

Act. As noted above, the Wiretap Act provides that: “[i]t shall not be

unlawful and no prior court approval shall be required under this chapter for

. . . [a]n investigative officer, a law enforcement officer or employees of a

county correctional facility to intercept, record, monitor or divulge any

telephone calls from or to an inmate in a facility under the following

conditions. . . .” 18 Pa.C.S.A. § 5704(14) (emphasis added). The listed

conditions in Section 5704(14) simply do not include any requirement that

each and every individual who speaks to an inmate on a telephone be

notified that the call is being recorded. See id. Indeed, insofar as

notification is concerned, Section 5704(14) requires only that “all inmates

of the facility [] be notified in writing that . . . their telephone

conversations may be intercepted, recorded, monitored or divulged” and

that “[p]ersons who are calling into the facility to speak to an inmate []

be notified that the call may be recorded or monitored.” 18 Pa.C.S.A.

§ 5704(14) (emphasis added). Again, Appellant does not claim that the

facility failed to notify Inmate Barnett “in writing that . . . [his] telephone

conversations may be intercepted, recorded, monitored or divulged” and

Appellant did not call into the facility. Therefore, the conditions concerning

notification in 18 Pa.C.S.A. § 5704(14) do not provide Appellant with an

avenue for relief; and, since Appellant does not claim that any of the actual

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conditions contained in Section 5704(14) were lacking, Appellant’s claim on

appeal fails. Under the plain language of Section 5704(14), “[i]t [was not]

unlawful and no prior court approval [was] required . . . for . . . [a]n

investigative officer, a law enforcement officer or employees of [the Erie

County Prison] to intercept, record, monitor or divulge” the telephone call

Inmate Barnett originally placed from inside the Erie County Prison on

December 1, 2014. See 18 Pa.C.S.A. § 5704(14).

For Appellant’s second claim on appeal, Appellant contends that the

evidence was insufficient to support his convictions. The claim fails.

We review Appellant’s sufficiency of the evidence challenge under the

following standard:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [that of] the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter of
law no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the
evidence.

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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).

On appeal, Appellant claims that the evidence was insufficient to

support his convictions because “the Commonwealth’s entire case was based

off of one unreliable eye witness . . . who came forward several weeks after

the incident and only after the Erie Police Department caught her with a

large stash of drugs.” Appellant’s Brief at 8-9. This constitutes a challenge

to the credibility of the Commonwealth’s witness and, thus, constitutes a

challenge to the weight of the evidence – not to the sufficiency of the

evidence. Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011)

(“[t]he sum of [a]ppellant’s sufficiency argument is that evidence was

insufficient because ‘the entire case of the Commonwealth rested on the sole

testimony of his disgruntled former girlfriend who went to police to keep him

away from their son when they had a custody dispute.’ Directed entirely to

the credibility of the Commonwealth’s chief witness, [a]ppellant’s claim

challenges the weight, not the sufficiency, of the evidence”). Therefore,

Appellant’s final claim on appeal necessarily fails.7
____________________________________________

7
We note that Appellant did not raise a weight of the evidence claim before
the trial court. Therefore, Appellant waived any weight of the evidence claim
he might have possessed. Pa.R.Crim.P. 607(A); Pa.R.A.P. 302(a) (“[i]ssues
not raised in the lower court are waived and cannot be raised for the first
time on appeal”). Moreover, we note that Appellant had a full and fair
opportunity to cross-examine Ms. Mathis and was able to introduce evidence
(Footnote Continued Next Page)

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Judgment of sentence affirmed. Jurisdiction relinquished.

Gantman, P.J., joins this opinion.

Fitzgerald, J., concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/22/2016

_______________________
(Footnote Continued)

that: on December 14, 2014, Ms. Mathis was caught with 12 individual
baggies of cocaine, each weighing 25 grams and provided a false name to
law enforcement; when the police were questioning Ms. Mathis regarding the
drugs, Ms. Mathis provided information regarding Appellant’s November 29,
2014 shooting; and, at the time of trial, Ms. Mathis had not been charged
with any crime arising out of the December 14, 2014 drug discovery. See
N.T. Trial, 7/15/15, at 57-64 and 83-84. Notwithstanding this evidence, the
jury believed Ms. Mathis’ testimony and concluded that, on November 29,
2014, Appellant fired a gun in an attempt to cause bodily injury to another
person. Such is the prerogative of the jury. Commonwealth v. Clark, 311
A.2d 910, 912 n.2 (Pa. 1973) (“[i]t is the prerogative of the jury to believe
all, part or none of the testimony offered”).

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