Com. v. Kerr, C.

J-A12003-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

CHARLES KERR,

Appellant No. 308 WDA 2018

Appeal from the Judgment of Sentence Entered January 9, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000561-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2019

Appellant, Charles Kerr, appeals from the judgment of sentence of an

aggregate term of 11½ to 23 months’ incarceration, followed by five years’

probation, imposed after a jury convicted him of various offenses, including

statutory sexual assault. Appellant raises a plethora of issues on appeal,

including a challenge to the trial court’s denial of his pretrial motion to

suppress evidence, and claims that the court erred in ruling on certain

discovery and evidentiary issues. After careful review, we affirm.

The trial court provided the following summary of the evidence

presented at Appellant’s trial:

Briefly, the evidence presented at trial established that on
February 20, 2016, [Appellant], then 36 years old, contacted
[K.E.], then 15 years old, online via the Kik [Messenger] app. The
two messaged back[]and[]forth through Kik, then [later] through
texting. During these conversations, [Appellant] encouraged
[K.E.] to send him naked pictures of herself and she complied.
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[K.E.] told her mother she was going out to her friend’s house and
would be spending the night. As this was a common occurrence,
her mother agreed. [Appellant] drove from his residence in
Greene County and picked [K.E.] up near her home in Plum
Boro[ugh]. The two went to Boyce Park and walked around and
during this time, [Appellant] kissed [K.E.]. They got back into
[Appellant’s] car and he drove towards his house, making stops
at a[n] Eat ‘n Park restaurant in Washington County and a
Goodwill store near the restaurant. They arrived at [Appellant’s]
house after 10 p.m. and went directly to [Appellant’s] bedroom
where they had vaginal and oral intercourse and watched a movie
before going to sleep. In the morning, they woke and had vaginal
and oral intercourse again and showered after. [Appellant] drove
[K.E.] home and dropped her off at a bar near her house. [K.E.]
went into her house, greeted her parents and showered again.
Then [K.E.] called her friend, at whose house she told her parents
she was spending the night, and told her what happened. [K.E.’s]
friend told her mother, who called [K.E.’s] mother, who confronted
[K.E.] and then called the police.

Trial Court Opinion (TCO), 7/18/18, at 2.

Based on this evidence, Appellant was charged

with two (2) counts each of Involuntary Deviate Sexual
Intercourse of a Person Under 161 and Unlawful Contact with a
Minor2[;] with four (4) counts of Statutory Sexual Assault3[;] and
with one (1) count each of Corruption of Minors,4 Interference with
Custody of a Minor,5 Criminal Use of a Communication Facility[,]6
and Indecent Assault of a Person Under 16.7 A jury trial was held
… from September 27, 2017 to October 5, 2017[,] and at its
conclusion, [Appellant] was convicted of two (2) counts of
Statutory Sexual Assault, Corruption of Minors, Interference with
Custody of a Minor, Criminal Use of a Communication Facility[,]
and Indecent Assault of a Person Under 1[6]. He was acquitted of
the rem[aining] charges. He appeared before [the trial] [c]ourt
on January 9, 2018, when he was sentenced to a term of
imprisonment of 11½ to 23 months[’ incarceration], with a
subsequent term of probation of five (5) years. Timely Post-
Sentence Motions were filed and were denied on January 30,
2018. This appeal followed.
1 18 Pa.C.S.[] § 3123(a)(7)….
2 18 Pa.C.S.[] § 6318(a)(1) … and § 6318(a)(5)….
3 18 Pa.C.S.[] § 3122.1(b)[.]

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4 18 Pa.C.S.[] § 6301(a)(1)(ii)[.]
5 18 Pa.C.S.[] § 2904(a)[.]
6 18 Pa.C.S.[] § 7512(a)[.]
7 18 Pa.C.S.[] § 3126(a)(7)[.]

Id. at 1-2.

After filing a notice of appeal, Appellant timely complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court thereafter filed a responsive Rule

1925(a) opinion. Herein, Appellant presents the following four issues for our

review:

I. Did the [trial] court err by denying [Appellant] discovery, his
discovery request(s)[,] and his ability to obtain, review, possess,
use and reproduce discovery?

II. Did the [trial] court err, after 5 days of trial, by denying defense
counsel’s request for a short recess before closing arguments to
prepare his closing for the jury, and than [sic] recessing after
defense counsel’s closing so the prosecution could prepare closing
aguements [sic]?

III. Did the trial court err under the Best Evidence Rule by allowing
the Commonwealth to use a hand[-]typed recreation of evidence
in lieu of the actual phone extraction report/texts and
communications[?]

IV. Did the trial court err by failing to suppress and/or exclude
statements made by [] Appellant at the time of arrest that were
made when Appellant was not Mirandized,[1] made to his
attorney and taken out of context to prove guilt at trial[?]

Appellant’s Brief at 6-7.2
____________________________________________

1 Miranda v. Arizona, 86 S.Ct. 1602 (1966).
2Appellant’s first and third issues each contain four sub-claims, thus totaling
10 issues for our review. As the trial court observed in light of the 31 claims
Appellant set forth in his Rule 1925(b) statement, see TCO at 3 n.8, this Court

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Appellant first contends that the court erred in denying his pretrial

motion to compel discovery under Pa.R.Crim.P. 573, and that the

Commonwealth failed to turn over material evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Specifically, Appellant sought discovery of a

CD containing approximately 40,000 data files that were extracted from the

victim’s cellular phone. While the Commonwealth turned over some of that

data to Appellant, it refused to provide him with a copy of the entire phone

extraction because it included thousands of images of child pornography

(namely, nude photographs of the victim). However, the Commonwealth

allowed Appellant and his defense counsel to view the entire CD at the District

Attorney’s Office. Appellant insists that this access was not sufficient, as he

was only able to review the CD on two occasions for approximately 8 hours

combined, and he was not permitted to copy or photograph any of the data.

Appellant also contends that the files on the CD were downloaded in a

confusing fashion, and the Commonwealth denied his request for their ‘tech

person’ to assist him in searching the data. Despite these difficulties,

____________________________________________

has “held that when an appellant raises an extraordinary number of issues on
appeal, as in this case, a presumption arises that there is no merit to them.”
Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995); see also
Commonwealth v. Showers, 782 A.2d 1010, 1016 (Pa. Super. 2001)
(quoting Judge Ruggiero Aldisert’s statement that where
“an appellant’s brief … contains ten or twelve points, a presumption arises that
there is no merit to any of them. I do not say that this is an irrebuttable
presumption, but it is a presumption nevertheless that reduces the
effectiveness of appellate advocacy. Appellate advocacy is measured by
effectiveness, not loquaciousness”) (citations omitted).

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Appellant “found evidence on the [CD] that appeared to be exculpatory[,] as

it showed the ‘victim’ in conversation with an out[-]of[-]state boy-

friend/significant other on the day of the alleged incident[,] which supported

the contention in Appellant’s testimony that she had left with someone else.”

Appellant’s Brief at 27-28. Appellant contends that his discovery of this

information on the CD demonstrates that the Commonwealth committed a

Brady violation, and that the court erred by denying his motion to compel the

Commonwealth to provide him with a copy of entire contents of the CD, or at

least the non-pornographic information contained thereon.

Initially, we have explained that Rule 573 “declares a preference for

informal discovery, contemplating that the parties will ‘make a good faith

effort to resolve all questions of discovery, and to provide information required

or requested under these rules as to which there is no dispute.’”

Commonwealth v. Maldonodo, 173 A.3d 769, 773 (Pa. Super. 2017)

(quoting Pa.R.Crim.P. 573(A)). “Rule 573 states that informal discovery must

take place before a party may request discovery via motion.” Id. If such

motion is filed, the rule sets forth the items of discovery that the

Commonwealth must supply. See id. Pertinent to the present case, Rule 573

states:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant’s attorney all
of the following requested items or information, provided

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they are material to the instant case. The Commonwealth
shall, when applicable, permit the defendant’s attorney to
inspect and copy or photograph such items.

(a) Any evidence favorable to the accused that is
material either to guilt or to punishment, and is within
the possession or control of the attorney for the
Commonwealth;

Pa.R.Crim.P. 573(1)(a) (emphasis added).

In Maldonodo, we explained:

Rule 573 does not abridge or limit the Commonwealth’s duty to
provide discovery pursuant to Brady … and its progeny. “In
Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment irrespective of the good
faith or bad faith of the prosecution.” Commonwealth v. Burke,
566 Pa. 402, 781 A.2d 1136, 1141 (2001) (quotation marks
omitted). “There are three components of a true Brady violation:
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286
(1999).

However, the rule imposes greater obligations upon prosecutors
than the Brady requirements. … Nevertheless, our cases
frequently analyze whether a particular discovery sanction was
justified by analyzing whether the evidence was required to be
disclosed pursuant to Brady. See e.g.[,] Commonwealth v.
Robinson, 122 A.3d 367 (Pa. Super. 2015) (reversing order
precluding Commonwealth from introducing evidence, analyzing
Brady). That one would draw upon Brady principles in
determining materiality is unsurprising since the rule limits
disclosure to “material” items, Pa.R.Crim.P. 573(B), and “material
for Brady purposes” has a particular meaning. See e.g.[,]
Commonwealth v. Willis, 616 Pa. 48, 46 A.3d 648 (2012)
(noting that admissibility at trial is not a prerequisite to disclosure
under Brady).

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Maldonodo, 173 A.3d at 774. Specifically, our Supreme Court has declared

that,

the touchstone of materiality is whether there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. Therefore,
nondisclosed favorable evidence which is not admissible at trial
may nonetheless be considered material for Brady purposes
where the Commonwealth’s failure to disclose such evidence
adversely affected the presentation of the defense at trial, or the
defense’s preparation for trial, such that there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. We
emphasize, however, that “mere speculation” by a defendant will
not be sufficient to meet this burden. Rather, in order to establish
a reasonable probability that the result of the proceeding would
have been different had the evidence been disclosed, a
defendant necessarily must identify specific evidence or
information that would have been uncovered, and explain
how that evidence or information would have changed the
result of the proceeding.

Commonwealth v. Willis, 46 A.3d 648, 670 (Pa. 2012) (emphasis added;

internal citations omitted).

Appellant has failed to meet this burden. Initially, the Assistant District

Attorney (ADA) prosecuting this case repeatedly stated on the record that he

had provided defense counsel with the material information that he had found

when reviewing the data extracted from the victim’s phone. See N.T. Hearing,

9/26/17, at 12 (ADA’s stating that he provided discovery to Appellant on

several occasions beginning in April of 2017, including “[p]rintouts of some

sections of conversations between the victim and [Appellant] from the victim’s

phone”); N.T. Hearing, 9/27/17, at 12-13 (ADA’s stating: “I looked through

the phone to the best of my ability [and] … did not see anything that jumped

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out as exculpatory. If [there] was, I would have provided it to defense

counsel.”); id. at 13 (ADA’s explaining that he printed out “numerous things

from the phone and sen[t] it in paper form” to defense counsel); N.T. Trial,

10/2/17, at 205 (ADA’s stating that, in regard to the phone extraction, he

“printed out pertinent pages from the extraction that [he] thought counsel

would need, knowing that he was still going to come in person and watch”).

Additionally, Appellant and his defense counsel were given unlimited

opportunities to review the entire contents of the CD. The fact that defense

counsel only viewed the CD twice, for a total of eight hours, was not the fault

of the Commonwealth, where nothing in the record indicates that the

Commonwealth limited Appellant’s ability to review that material.

Moreover, it was during Appellant’s review of the CD at the District

Attorney’s Office that he ostensibly uncovered the information about the other

individual with whom the victim was communicating on, or close to, the day

she met with Appellant. Thus, the Commonwealth did not withhold this

information from Appellant in violation of Brady. While Appellant insists a

Brady violation occurred because “the [c]ourt … refuse[d] to allow any

testimony about [that other individual], after the victim confirmed she [k]new

him and may have been talking to him around that time[,]” he provides no

citation to where in the record this decision by the court occurred. Appellant’s

Brief at 28. In any event, it is the Commonwealth, not the trial court, that

has disclosure obligations under Brady; thus, Appellant’s nonsensical

argument is meritless.

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Appellant also alleges that he found “numerous videos and images and

texts in the phone which directly contradicted statements the victim made

during the investigation, such as being a virgin, never seeing a penis, and her

testimony that she didn’t have a boyfriend at the time.” Appellant’s Brief at

33. Again, the Commonwealth clearly did not withhold this evidence from

Appellant, as he found it while reviewing the CD at the District Attorney’s

Office. To the extent that Appellant speculates, generally, that there was

more material information on the CD that he was unable to uncover, he has

failed to identify what, specifically, that information would entail or how it

would have changed the outcome of his trial. See Willis, supra. Notably,

Appellant does not contend that since trial, the Commonwealth has denied

him access to the CD. Thus, he has not demonstrated an abuse of discretion

in the court’s ruling on his motion to compel discovery of the contents of the

CD, nor that the Commonwealth violated the dictates of Brady.

Appellant also contends, in a sub-claim under his first issue, that the

court abused its discretion in denying his motion for a continuance of trial,

filed in September of 2017, on the basis that the Commonwealth had not

turned over a copy of the entire contents of the CD containing all of the data

extracted from the victim’s phone. Notably, even though Appellant did not

have a copy of the CD, he was provided access to review it beginning in April

of 2017. The fact that he only examined the data for a total of eight hours

over the following five months before filing his continuance request was his

fault alone, and it did not obligate the court to grant him a continuance.

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Therefore, we find no abuse of discretion by the trial court. See

Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011) (“The

grant of a continuance is discretionary and a refusal to grant is reversible error

only if prejudice or a palpable and manifest abuse of discretion is

demonstrated.”) (citation omitted).

In Appellant’s final sub-claim under his first issue, he alleges that the

trial court had ex parte communications with the Commonwealth about his

motion to compel discovery, as evidenced by the fact that the court knew —

without any on-the-record information — that defense counsel had been late

to one scheduled viewing of the CD. Appellant’s Brief at 30. As the

Commonwealth points out, Appellant never raised this claim of ex parte

communications before the trial court. See Commonwealth’s Brief at 19 n. 8.

Thus, it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

In Appellant’s second issue, he contends that the trial court erred by

refusing defense counsel’s request for a short recess before closing

arguments. See N.T. Trial, 10/2/17, at 546. According to Appellant, while

his “trial was not the longest or most difficult case[,]” the “closing arguments

required the recollection of substantial facts to be recalled and re-presented

[sic] in closing.” Appellant’s Brief at 38. Appellant also challenges the court’s

decision to break for a lunch recess before the Commonwealth’s closing

argument. Appellant insists that this decision, made after the court denied

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defense counsel’s request for a recess before closing, showed that the court

was bias and partial towards the Commonwealth.

We view the court’s denial of a recess request as akin to the denial of a

continuance and, thus, we apply an abuse-of-discretion standard of review.

See Hansley, supra. Here, Appellant has not demonstrated an abuse of

discretion by the court. As the Commonwealth stresses,

at the end of testimony the previous day - October 3 - [the court]
had told both attorneys that [it] expected closing arguments to
take place the following morning. … [T]he only testimony that
took place on the morning of October 4 was the resumption of that
of [Appellant] himself — [Appellant] had begun his testimony the
previous afternoon — and a very brief character witness called by
the defense. Thus, defense counsel not only had been put on
notice as to when his closing argument was to take place, but he
also would have heard very few additional facts that morning, all
of which [came] from the mouth of [Appellant]. Given that
counsel was surely familiar with the version of events that
[Appellant] wished to present to the jury, those facts would have
been quite easy to incorporate into a closing argument that
counsel had had more than enough time to prepare the previous
evening. For this reason, the trial court certainly cannot be said
to have abused its discretion in denying a [recess] so that counsel
could work on his argument further.

Commonwealth’s Brief at 20-21. We agree with the Commonwealth. We also

observe that Appellant fails to identify any way in which his closing argument

would have been different had his request for a recess been granted.

Therefore, he has not demonstrated that the court abused its discretion by

denying his recess request, or that he suffered any prejudice in light of that

decision.

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We also agree with the Commonwealth’s position that Appellant waived

his claim that the court erred by recessing for lunch before the prosecutor’s

closing argument. Appellant never objected when the court stated it was

recessing at that time, nor raised any issue with the court’s decision to do so

when the trial reconvened for the Commonwealth’s closing argument. See

N.T. Trial, 10/2/17, at 566. Thus, he cannot now claim, for the first time on

appeal, that the court’s conduct prejudiced him, or that it evidenced that the

court was biased in favor of the Commonwealth. See Pa.R.A.P. 302(a).

In Appellant’s third issue, he avers that the trial court erred by allowing

the Commonwealth to admit evidence that violated the “best evidence” rule,

which provides: “An original writing, recording, or photograph is required in

order to prove its content unless these rules, other rules prescribed by the

Supreme Court, or a statute provides otherwise.” Pa.R.E. 1002. Appellant

explains that, prior to trial, the Commonwealth provided him with

approximately 50 pages of data taken from the victim’s phone. This “mini-

extraction,” as Appellant calls it, “was what the [Commonwealth] wanted to

use as evidence, which is why Appellant was given a copy of it.” Appellant’s

Brief at 42. However, according to Appellant, the Commonwealth did not seek

to admit at trial the original pages provided to Appellant during discovery;

instead, Appellant alleges that the prosecutor “took conversations from the

mini-extraction and typed [them] into his own form in a Microsoft-word [sic]

document” and sought to admit it as Exhibit 1. Id. at 42; see N.T. Trial,

9/28/17, at 154-55. Appellant “objected on the grounds of the ‘Best Evidence

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Rule’ because the [prosecutor] actually had the original conversation and it

appeared to be different in form, if not substance. The [c]ourt overruled

Appellant’s objection and allowed it in.” Id.; see N.T. Trial, 9/28/17, at 155.

Additionally, Appellant also takes issue with the court’s admission of the

Commonwealth’s Exhibit 9 later at trial. Specifically, the Commonwealth

sought to admit a document containing Kik app messages between the victim

and Appellant. See N.T. Trial, 10/2/17, at 201-02. Appellant again objected

on the basis of the best evidence rule and, in response, the Commonwealth

stated that the document was “the original from the extraction.” Id. at 203.

Accordingly, the court overruled Appellant’s objection.

Appellant now contends that the court’s admission of these two exhibits

was reversible error. We are not convinced. Initially, we note that

“[q]uestions regarding the admissibility of evidence rest within the trial

judge’s discretion, and an appellate court will reverse the judge’s decision only

for an abuse of discretion.” Commonwealth v. Vandivner, 962 A.2d 1170,

1179 (Pa. 2009) (citations omitted).

Here, the Commonwealth contends that “the exhibits at issue were, in

fact, the original messages” extracted from the victim’s phone.

Commonwealth’s Brief at 25. The record demonstrates that the trial court

accepted the Commonwealth’s claim, at least pertaining to Exhibit 9, and we

cannot deem that decision an abuse of discretion. Notably, the exhibits are

not contained in the certified record and, according to Appellant, they are

“gone, missing, misplaced or otherwise.” Appellant’s Brief at 41. Thus, we

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are unable to verify Appellant’s allegation that the exhibits were ‘handmade’

replicas of the original, ‘mini-extraction’ documents provided to Appellant in

discovery.

Moreover, Appellant offers no discussion of what, precisely, was set

forth in the at-issue exhibits, nor presents any argument that they were

material to proving his guilt at trial. As this Court has explained, “if the

Commonwealth is introducing a writing, recording, or photograph at trial, Rule

1002 requires that the original be introduced only if the Commonwealth

must prove the contents of the writing, recording or photograph to

establish the elements of its case.” Commonwealth v. Green, 162 A.3d

509, 518 (Pa. Super. 2017) (emphasis added). In other words, the content

of the Commonwealth’s at-issue exhibits “must be material to, and not just

mere evidence of, the issues at bar for the best evidence rule to apply.” Id.

Appellant has not explained what the content of the exhibits was, let alone

presented any argument regarding the materiality thereof. Thus, he has failed

to demonstrate that the court abused its discretion in overruling his best

evidence objections and admitting those exhibits.3

We next address Appellant’s sub-claim that the trial court erred by not

allowing him to admit the contents of the ‘mini-extraction’ during the

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3 To the extent Appellant claims that the exhibits should not have been
admitted because he “had never seen [them] before trial, or before the
[Commonwealth] had planned on putting [them] into evidence[,]” he did not
object to the admission of the exhibits on this basis. Appellant’s Brief at 42.
Thus, this argument is waived. See Pa.R.A.P. 302(a).

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testimony of the Commonwealth’s expert witness, Matthew Rosenberg, who

had conducted the extraction of data from the victim’s phone. Appellant also

claims that the court improperly precluded him from questioning Rosenberg

about the contents of the ‘mini-extraction.’

Initially, at trial, the Commonwealth clarified that the “extraction report”

written by Rosenberg was only “the first two pages of the phone extraction

that ha[s] the person’s name, the phone number, that information.” N.T.

Trial, 9/28/17, at 144-45. While the term ‘report’ had been misleadingly used

to refer to the “actual extraction, [i.e.,] text messages, [and] things like

that[,]” id. at 145, Rosenberg did not draft any of that content, but merely

extracted it from the victim’s phone. Indeed, Rosenberg testified that he did

not even read the contents of the data he extracted. Id. at 143. Instead, he

had simply placed that information onto a CD and provided it to the detectives

investigating this case. Id.

In light of this record, we discern no error in the trial court’s precluding

Appellant from questioning Rosenberg about, or seeking to admit through his

testimony, the content of the extraction from the victim’s phone. As the

Commonwealth stresses, “Rosenberg merely extracted the text messages,

photos and other items from the victim’s phone without reviewing the

particular content. Therefore, any attempt by the defense to introduce any of

the phone’s specific content into evidence through this witness could not have

been proper and, as a result, it was not an abuse of the trial court’s discretion

to not have allowed it.” Commonwealth’s Brief at 27. We agree.

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In Appellant’s next sub-claim under his third issue, he seemingly

contends that the trial court erred by not allowing him to recall the victim to

the stand to lay a foundation for the admission of the extraction report. We

agree with the Commonwealth that Appellant’s argument in support of this

claim is incoherent. See Appellant’s Brief at 45. Thus, we deem it waived.

See Commonwealth v. Hallock, 722 A.2d 180, 181 (Pa. Super. 1998) (“We

decline to become [the] appellant’s counsel. When issues are not properly

raised and developed in briefs, when the briefs are wholly inadequate to

present specific issues for review, a court will not consider the merits

thereof.”).

In Appellant’s final sub-claim under this issue, he argues that the trial

court erred by not permitting him to admit an exhibit during the

Commonwealth’s case-in-chief. Specifically, during the cross-examination of

Detective Mark Restori, defense counsel questioned the detective about a

document identified as a “lab submittal form.” N.T. Trial, 10/2/17, at 345.

After further questioning, defense counsel sought to admit that document into

evidence. Id. at 348. The Commonwealth objected on the basis that the

defense could not admit evidence during the prosecution’s case-in-chief. Id.

The trial court sustained that objection, instructing defense counsel that he

would not need to recall the detective during the defense’s case, but could

simply “move that [the document] be admitted” into evidence at that time.

Id.

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Appellant now contends that the court’s decision “show[ed] a continuing

bias from the [c]ourt to slow down and preclude the [d]efense from making a

coherent defense to the jury.” Appellant’s Brief at 48. This argument is not

only waived because Appellant never raised it below, see Pa.R.A.P. 302(a),

but it is meritless. The court sustained the Commonwealth’s objection, and

informed defense counsel that he could admit the document during Appellant’s

case-in-chief. Appellant cites no legal authority indicating that the court’s

ruling was erroneous, and nothing in the record supports his assertion that

the court’s decision was based on bias or impartiality. Therefore, Appellant’s

final sub-claim under his third issue is meritless.

Lastly, in Appellant’s fourth claim for our review, he maintains that the

trial court erred by denying his pretrial motion to suppress statements he

made while in police custody. Preliminarily, we note:

An appellate court’s 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, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous. Where 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 plenary review.

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Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned

up).

Here, Appellant sought suppression of two statements he made in the

presence of Waynesburg Police Officer Marcus Simms. At the suppression

hearing, Officer Simms testified that, while Appellant was in custody at the

Waynesburg Police Department awaiting transport to Allegheny County, his

attorney arrived and spoke with Appellant. See N.T. Suppression Hearing,

9/27/17, at 17-18. Defense counsel sat with Appellant on a bench in the

“patrol room and began reading over what the arrest warrant was for, [the]

charges and everything.” Id. at 19. At this point, Officer Simms was sitting

at his desk approximately 5 feet from where Appellant and defense counsel

were located. Id. Officer Simms testified that when defense counsel read the

date of the alleged incident to Appellant, Appellant said, “That was a long time

ago.” Id. at 20. Additionally, when counsel finished “reading the … affidavit

of probable cause, [Appellant] said, ‘If I’m found guilty of some of these, …

how much time will I get….’” Id. Officer Simms testified that at no point did

Appellant and/or defense counsel ask for privacy, or for Officer Simms to leave

the area where their conversation was taking place. Id. Additionally, the

officer testified that defense counsel spoke to the officer “at different points

during that time[,]” thus demonstrating that counsel and Appellant were

aware of the officer’s presence close by. Id. On cross-examination, Officer

Simms acknowledged that Appellant had not been provided with Miranda

warnings before conversing with defense counsel.

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Appellant sought suppression of the above two statements he made to

his attorney on the grounds that they were protected by the attorney-client

privilege, he had not received Miranda warnings before making them, and

they were taken out of context. The court denied suppression, and we discern

no abuse of discretion in that decision. As the Commonwealth contends,

in order for the attorney-client privilege to apply, a confidential
communication between a lawyer and his client is required.
Commonwealth v. DuPont, 730 A.2d 970, 977 (Pa. Super.
1999), appeal denied, 749 A.2d 466 (Pa. 2000). See also
Commonwealth v. Mrozek, 657 A.2d 997, 998 (Pa. Super.
1995), appeal denied, 668 A.2d 1127 (Pa. 1995) (one requirement
for the assertion of the attorney-client privilege is that the
communication relates to a fact of which the attorney was
informed by his client “without the presence of strangers”). Here,
… the at-issue statements made by [Appellant] were clearly done
so in the presence of Officer Simms; in fact, the officer even
testified that he — Simms — was conversing with [defense
counsel] at the same general time and from the exact same
vantage point that he was at when he heard the statements by
[Appellant] (see [Suppression Hearing at] 20). Because of the
location of the officer and the fact that [Appellant] and [defense
counsel] were aware of his presence, the trial court ruled that no
attorney-client privilege existed and, thus, [it] denied
[Appellant’s] suppression claim. As the law supports the court’s
ruling, there was clearly no error.

[Appellant] also contends that his suppression motion
should have been granted because he had not received any
warnings pursuant to Miranda…. But it is clear that Miranda
warnings are only required when a suspect is in custody and
subjected to interrogation. See Commonwealth v. Jasper, 587
A.2d 705, 709 (Pa. 1991). Where there has been no interrogation,
no Miranda warnings are necessary. Id. In the instant case,
Officer Simms testified in no uncertain terms at the suppression
hearing that he never questioned [Appellant] at any point and
had, in fact, told [Appellant] that he would not be questioned by
the Waynesburg Police ([N.T. Suppression Hearing at] 27-28).
Thus, because no interrogation took place, no Miranda warnings
were required, and, as a result, suppression was not warranted

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based on the fact that such warnings were not given by Officer
Simms.

Lastly, [Appellant] claims that suppression should have
been granted because his statements were taken out of context.
Specifically, he argues that the things that he said did “not
insinuate that the underlying offense had occurred” (see
[Appellant’s Brief at] 51). The Commonwealth would respectfully
submit that whether or not [Appellant’s] statements were an
admission that he had had sexual intercourse with the 15-year-
old victim was a matter for the jury to decide and that any
ambiguity in those statements was not the basis for suppression.
Consequently, [the trial court] did not err in failing to grant
suppression on this basis either.

Commonwealth’s Brief at 33-35 (footnote omitted).

We are convinced by the Commonwealth’s argument, and the case law

on which it relies, that the trial court did not err in denying Appellant’s motion

to suppress the statements he made to defense counsel in front of Officer

Simms. Those non-private, non-interrogation remarks were not protected by

the attorney-client privilege, and Miranda warnings were not required.

Additionally, it was for the fact-finder to determine the meaning and

implications of Appellant’s statements. As such, Appellant’s fourth and final

issue is meritless.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

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Date: 7/10/2019

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