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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
INDIA SPELLMAN
Appellant No. 3781 EDA 2015
Appeal from the Judgment of Sentence May 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001160-2011
CP-51-CR-0001161-2011
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED JANUARY 09, 2017
Appellant, India Spellman, appeals nunc pro tunc from the judgment
of sentence entered after a jury found her guilty of, among others, second
degree murder, robbery, conspiracy, and violations of the Uniform Firearms
Act. Spellman argues that the trial court erred in finding that her confession
to investigators was admissible, and in failing to declare a mistrial when a
Commonwealth witness unexpectedly testified to an in-court identification of
Spellman. After careful review, we affirm.
At trial, the Commonwealth presented the testimony of Spellman’s co-
defendant, Von Combs. Combs, 14 years old at the time in question,
testified that he and Spellman, who was then 17, were walking through the
neighborhood when they encountered Shirley Phillips. As the two
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approached Phillips, Combs testified that Spellman announced that she
intended to rob Phillips.
According to Combs, Spellman pointed a gun at Phillips and demanded
she surrender her property. Phillips dropped her belongings and fled down
the street. Spellman and Combs gathered Phillips’s property and quickly
departed the scene of the crime.
Shortly thereafter, the two resumed their prowl through the
neighborhood. As they walked, they approached George Greaves, who was
standing in his driveway. Combs testified that once again, Spellman
announced her intent to rob Greaves before committing the crime. Combs
claimed that he had attempted to talk Spellman out of the crime, but that
she proceeded to rob Greaves anyway. During the robbery, Greaves
struggled with Spellman, and Spellman placed her gun against Greaves’s
chest and shot him. Greaves did not survive the shooting.
The Commonwealth also presented the testimony of Kathy Mathis.
During direct examination, Mathis positively identified Spellman as the
young woman she observed fleeing from the scene of Greaves’s murder. She
had never made a positive identification of Spellman prior to her in-court
testimony.
Furthermore, the Commonwealth presented Spellman’s signed
confession to the above crimes. Prior to trial, Spellman attempted to have
the confession suppressed, but the trial court had denied the motion.
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As noted above, the jury convicted Spellman of second-degree
murder, two counts of robbery, and other associated charges. The trial court
imposed an aggregate sentence of imprisonment of 30 years to life. No
direct appeal was filed.
Spellman’s direct appeal rights were restored through the Post
Conviction Relief Act. However, her right to file post-sentence motions was
not restored. This nunc pro tunc appeal followed.
Spellman raises two issues on appeal. First, she argues that the trial
court erred in denying her motion to suppress her confession.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
[W]e 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.
Further, [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.
Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted; first brackets in original, second brackets
supplied).
Spellman contends that her confession was not voluntary. Specifically,
she argues that, given a subsequent history of suppressed confessions
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procured by detectives involved in this case, the trial court’s conclusion that
Spellman was permitted to consult with her father is unsupportable.
However, evidence of the detectives’ objectionable actions in other cases is
not part of the certified record in this case. We therefore cannot consider it
in resolving Spellman’s argument on appeal. See Roth Cash Register
Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super.
2005).1
In determining the admissibility of a juvenile’s confession, a court
must consider and weigh all the attending facts and circumstances
surrounding the confession. See Commonwealth v. Carter, 855 A.2d 885,
890 (Pa. Super. 2004). Among the relevant circumstances are the juvenile’s
“youth, experience, comprehension, and the presence or absence of an
interested adult[,]” as well as the manner, location, and duration of the
questioning that led to the confession. Id. (citation omitted).
The presence of an interested adult is but one factor among many
when reviewing the circumstances surrounding a juvenile’s confession. See
id. The Supreme Court of Pennsylvania has “reject[ed] the application of a
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1
Spellman cites to three cases from the Court of Common Pleas. Arguably,
these decisions are subject to judicial notice. However, to determine the
relevance of those cases to the present case, we must assess the credibility
and weight of evidence in this case and the effect those cases have on the
circumstances of this case. For these reasons, and given our standard of
review, we find the mechanism of judicial notice inappropriate in reviewing
this issue on direct appeal.
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rebuttable presumption that a juvenile is incompetent to waive his
constitutional rights without first having an opportunity to consult with an
interested [adult].” Commonwealth v. Williams, 475 A.2d 1283, 1287
(Pa. 1984).
The trial court found credible the detective’s testimony that he had
discussed the situation with Spellman and her father before interrogating
her. See N.T., Suppression Hearing, 2/13/13, at 42. The detective also
testified, and the trial court also found this testimony credible, that neither
Spellman nor her father ever requested the presence of an attorney. See id.
These findings are supported by the record, and do not constitute an abuse
of discretion. They are therefore sufficient to overcome Spellman’s argument
on appeal.
Next, Spellman contends that the trial court erred in refusing to
declare a mistrial when Mathis testified, for the first time, that Spellman was
the person who shot Greaves. Mathis was a neighbor of Greaves, and
testified that she was in her house when she heard gunshots. See N.T.,
Trial, 2/13/13, at 23-24. She ran outside to check on her grandson, and saw
a young man and young woman running away. See id., at 24. At trial, the
prosecutor asked if the young woman Mathis saw fleeing the scene of the
crime was in court. See id., at 27. She affirmatively responded and pointed
to Spellman. See id.
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Spellman argues that this identification constituted trial by ambush. It
is true that trial by ambush is disfavored in this Commonwealth. See
Commonwealth v. Thiel, 470 A.2d 145, 149 (Pa. Super. 1983). However,
Spellman has failed to establish that Mathis’s identification testimony was an
ambush.
Spellman premises her argument on an allegation of prosecutorial
misconduct. See Appellant’s Brief, at 15.
The phrase “prosecutorial misconduct” has been so abused as to
lose any particular meaning. The claim either sounds in a specific
constitutional provision that the prosecutor allegedly violated or,
more frequently, like most trial issues, it implicates the narrow
review available under Fourteenth Amendment due process. See
Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d
618 (1987) (“To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
result in the denial of the defendant’s right to a fair trial.”)
(internal quotation marks omitted); Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d
431 (1974) (“When specific guarantees of the Bill of Rights are
involved, this Court has taken special care to assure that
prosecutorial conduct in no way impermissibly infringes them.”).
However, “[t]he Due Process Clause is not a code of ethics for
prosecutors; its concern is with the manner in which persons are
deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504,
511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is
the fairness of the trial, not the culpability of the prosecutor.
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982).
Commonwealth v. Tedford, 960 A.2d 1, 28-29 (Pa. 2008).
Spellman’s claim is not based upon a constitutional provision. Rather,
she argues that she did not receive a fair trial because the prosecutor
violated the discovery rules contained in the Rules of Criminal Procedure.
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While we share Spellman’s skepticism of the prosecutor’s claim that he
was unaware of what Mathis’s answer would be when he asked her if the
fleeing woman was in the courtroom, this skepticism is insufficient to provide
relief on appeal. Spellman does not contest that Mathis was identified as an
eyewitness in several police reports that were provided to Spellman during
discovery. Mathis was therefore not a new witness under Pa.R.Crim.P.
573(D). See Commonwealth v. Honesty, 850 A.2d 1283, 1287 n.2 (Pa.
Super. 2004).
Nor is there any evidence in the certified record that Mathis
participated in a pre-trial procedure to identify Spellman. Indeed, Spellman
conceded that she had cancelled a scheduled pre-trial line-up for Mathis.
See N.T., Trial, 2/14/13, at 28. This line-up was never rescheduled. See id.,
at 28-29. Thus, Spellman was given an opportunity to discover Mathis’s
identification testimony prior to trial. Under these circumstances, we simply
cannot conclude that the Commonwealth violated Pa.R.Crim.P. 573(B)(1)(d).
As we cannot conclude that the prosecutor violated any Rule of
Criminal Procedure, Spellman has failed to establish that she was denied a
fair trial on this ground. Her second issue on appeal therefore merits no
relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2017
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