Com. v. Arnao, P

J-A21015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL A. ARNAO :
:
Appellant : No. 839 EDA 2018

Appeal from the Judgment of Sentence October 4, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000330-2016

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: Filed: March 23, 2020

Paul A. Arnao appeals from the October 4, 2017 judgment of sentence

following his convictions for aggravated assault, simple assault, possession of

a firearm prohibited, possession with intent to deliver a controlled substance

(“PWID”), possession of an instrument of crime, and possession of a controlled

substance by a person not registered. After careful review, we affirm.

The trial court aptly summarized the factual history of this case:

Appellant was arrested in the aftermath of a 911 domestic
violence call on the morning of January 4, 2016, just after
midnight, to which Marcus Hook Police Officer Daniel Barnett
responded at the location of 9th and Green Street in Marcus Hook,
Delaware County, Pennsylvania. On arrival there, Officer Barnett
found the victim Darla Olson (the “victim”) hysterical (on the
porch of her mother’s house) with reddened horizontal
strangulation marks wrapped around her neck. When asked what
happened, the victim, over her crying and inability to speak after
several minutes, said her boyfriend, Appellant, wrapped a yellow
nylon rope around her neck and strangled her. Appellant lived in
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a second-floor apartment in a separate home approximately fifty
(50) feet from the victim’s mother’s home.

As to her physical appearance, Officer Barnett described long red
marks on the side of her neck approximately one (1) to two (2)
inches long. The marks appeared to Officer Barnett to be rope
burns. . . . The victim also reported to Officer Barnett that
Appellant is crazy, that he was probably watching from his
apartment as they spoke. She said Appellant had firearms and he
would shoot a police officer.

Officer Barnett was standing fifty (50) to seventy-five (75) feet
from Appellant’s apartment as he received this information from
the victim. As he and other officers approached Appellant’s
apartment which was accessible by a flight of metal stairs, Officer
Barnett did observe exterior surveillance cameras pointed at the
stairs and entrance.

....

As the officers approached the bottom of the staircase and
encountered the surveillance cameras, they reconsidered possibly
calling in a SWAT team to assist taking Appellant into custody but
the door to Appellant’s apartment swung open and he came
walking out. Appellant complied with instructions to come down
the stairs with his hands up to be taken into custody.

After Appellant was taken into custody, there was no discussion
or questioning and Appellant was not Mirandized[1] at that point.
As Appellant was taken into custody the apartment door remained
open. Officer Crouse of the Marcus Hook Police Department
escorted Appellant to a patrol car. Other officers conducted a
protective sweep of Appellant’s apartment.

Before entering the apartment, Officers Barnett, Hallman and
Donnelly remained on the landing outside the apartment and were
observing whatever they could before cautiously entering the
apartment. From his vantage point outside the apartment, Officer
Barnett testified he could plainly see a yellow rope consistent with
the one described by the victim as used in the attack to choke her
by Appellant.
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1 See Miranda v. Arizona, 384 U.S. 436 (1966).

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Officer Barnett also testified he plainly smelled burnt marijuana.
Officer Barnett testified the apartment was in disarray. He
testified there were stray bullets scattered all over. There was a
silver revolver hanging over the door in the living room and
bedroom. The only space that was checked was behind a closet
door. Thereafter, Officer Hallman remained stationed there at the
apartment while an application for a search warrant was to be
made by Officer Barnett.

Officer Barnett then confronted Appellant and told him he had two
options, that he could consent to the search or officers were going
to apply for a search warrant. Initially, Appellant refused to
consent to the search. Thereafter, as Appellant was placed in the
patrol car, he relented saying he didn’t want to give police a hard
time, and that he would consent to the search. At that point,
Appellant was taken to the police station (a 30-second ride) where
he was presented with the consent form to read and sign. . . .
Once the form was signed, Officer Crouse remained with the
defendant at the police station while Officer Barnett conducted the
search.

During the search, officers seized the following: yellow twine rope,
a silver revolver, a glass jar containing suspected marijuana, a
brown ceramic jar which contained 3 clear glassine bags, two had
a crystal-like substance that field-tested positive for
methamphetamine, one baggie contained a clear crystal residue,
a digital scale, four small notebooks with instructions on how to
make crystal meth, tally sheets, a black safe and a black satchel
containing a ski mask and gloves and an air soft rifle type gun,
numerous rounds of live ammunition, as well as Appellant’s
identification . . . and two tool boxes containing lock picking tool
sets.

Trial Court Opinion, 10/10/18, at 4-9 (cleaned up; internal citations omitted).

After a jury trial, Appellant was convicted of the aforementioned crimes

and sentenced to an aggregate term of imprisonment of thirty to sixty years.2

Appellant timely filed post-sentence motions, which were denied. Thereafter,

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2 Appellant was subject to third-strike sentencing. See 42 Pa.C.S. § 9714.

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Appellant filed a timely notice of appeal. The trial court ordered Appellant to

file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), Appellant

timely complied, and the trial court filed an opinion pursuant to Rule 1925(a).

Appellant has presented the following claims of error for our review:

1. The evidence was insufficient for the jury’s verdict of guilty on
the charge of aggravated assault as there was no evidence
presented that Appellant attempted to create a substantial risk of
death, i.e., serious bodily injury to the victim.

2. The evidence was insufficient for the jury’s verdict of guilty on
the charge of person not to possess a firearm where the
Commonwealth failed to establish the firearms found by the
Marcus Hook Police Department was a firearm under the
definition, rather an antique and that the firearms were not
operable.

3. The evidence was insufficient for the jury’s verdict of guilty on
the charge of PWID where there was no evidence Appellant
delivered any meth to anyone or that Appellant manufactured
meth.

4. The trial court erred in denying Appellant’s motion to suppress
where the Commonwealth of Pennsylvania failed to establish the
police had reasonable suspicion/probable cause to make a
protective sweep of Appellant’s residence and the alleged consent
given to search the residence occurred while Appellant was in
handcuffs and included entering a locked cabinet.

5. The jury’s verdict on the charges of aggravated assault, PWID,
and Person not to Possess a Firearm was against the weight of the
evidence as the evidence showed Appellant did not assault the
victim, did not sell drugs, and did not possess a firearm when he
was ineligible to do so.

6. The trial court erred in allowing the inadmissible hearsay
testimony of both Regina Scarpato (the victim’s mother) and
Officer Daniel Barnett regarding conversations with the victim
both on the date of the incident of January 4, 2016, and

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immediately prior to trial when the victim did not appear and/or
testify at trial.

7. The District Attorney’s Office failed to provide Appellant with
discovery, specifically the videotape on the date of the incident
from January 4, 2016, at the Marcus Hook Police Station which
was previously requested from the District Attorney’s Office
following Appellant’s initial arrest and the Commonwealth failed to
provide a full and complete copy of the firearms expert’s report as
well as the drug expert’s entire report, only several pages of the
report.

8. The trial court erred in sentencing Appellant as a third-strike
offender as Appellant was still serving a term of probation when
he was arrested and charged with the second “alleged” strike and
was never sentenced on the “second strike” as a second-strike
offender.

Appellant’s brief at 8-10 (cleaned up; issues renumbered).

Appellant’s first three issues challenge the sufficiency of the

evidence with respect to Appellant’s convictions for aggravated assault, PWID,

and person not to possess a firearm, respectively. See Appellant’s brief at

30-40. We will address these claims seriatim.

Our Supreme Court has discussed our standard and scope of review in

this context as follows: “[W]ith respect to our sufficiency review, our standard

of review is de novo, however, our scope of review is limited to considering

the evidence of record, and all reasonable inferences arising therefrom,

viewed in the light most favorable to the Commonwealth as the verdict

winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). We

also note at the outset that “the Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt relying wholly

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on circumstantial evidence,” and that “[b]oth direct and circumstantial

evidence must be considered equally when assessing the sufficiency of the

evidence.” Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa.Super.

2001). Finally, “any doubt about the defendant’s guilt is to be resolved by the

fact[-]finder unless the evidence is so weak and inconclusive that, as a matter

of law, no probability of fact can be drawn from the combined circumstances.”

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016).

The Commonwealth charged Appellant pursuant to the attempt

provision of the aggravated assault statute. See 18 Pa.C.S. § 2702(a)(1). A

person is guilty under this subsection if he “attempts to cause serious bodily

injury to another, or causes such injury intentionally, knowingly, or recklessly

under circumstances manifesting extreme indifference to the value of human

life . . . .” Id. Since the victim did not ultimately suffer a “serious bodily

injury,” defined at 18 Pa.C.S. § 2301 as an injury that, inter alia, “creates a

substantial risk of death,” the Commonwealth is required to prove that

Appellant possessed the specific intent to cause such an injury. See

Commonwealth v. Everett, 596 A.2d 244, 245 (Pa.Super. 1991). In this

context, “[a] person acts intentionally with respect to a material element of

the offense when . . . it is his conscious object to engage in conduct of that

nature or to cause such a result.” Id. (citing 18 Pa.C.S. § 302(b)(1)(i)).

Appellant asserts that the Commonwealth has presented insufficient

evidence of his intent to cause serious bodily injury to the victim. See

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Appellant’s brief at 31. Viewing the evidence in the light most favorable to

the Commonwealth, we must disagree.

Appellant emphasizes throughout his argument regarding aggravated

assault that there is a lack of “direct evidence” regarding his intent to cause

serious bodily injury. See Appellant’s brief at 31-32. However, there was

ample circumstantial evidence adduced by the Commonwealth at trial

bespeaking Appellant’s attempt to strangle the victim by hanging, including:

(1) testimony that the victim told3 her mother and the responding police

officers that Appellant tried to strangle her with a yellow nylon rope that was

“hung over something,” N.T. Trial, 8/22/17, at 33, 59, 63, 184; (2) testimony

that Appellant only failed in this attempted hanging when the rope broke while

the victim was being strangled, id. at 33; (3) testimony from multiple

witnesses that a red ligature mark was visible around the victim’s throat

immediately after the attack, id. at 34, 96; (4) photographs of these same

ligature marks, id. at 75-76, 95; and (5) the yellow nylon rope found in

Appellant’s apartment, id. at 68, 101.

Before this Court, Appellant does not dispute that the underlying attack

took place, but argues that “[t]here was no risk of death or loss or impairment

of a body organ” as a result of his assault of the victim. Appellant’s brief at

____________________________________________

3 The victim did not testify at trial, but her statements were admitted at trial
under various hearsay exceptions. Appellant has raised separate claims
regarding the admission of this evidence that we will address infra.

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32. In relevant part, he appears to suggest that an attempted strangulation

that fails to kill the victim does not establish the necessary specific intent to

cause serious bodily injury. However, our Supreme Court has held that the

neck is a “vital part” of a person’s body. See Commonwealth v. Montalvo,

956 A.2d 926, 933 (Pa. 2008). In this case, it seems that Appellant’s use of

the yellow nylon rope as a ligature upon the victim’s neck also transformed

that improvised implement into a “deadly weapon” under the circumstances.

See Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa.Super. 2010) (“Items

not normally considered deadly weapons can take on such status based upon

their use under the circumstances.”).

“[I]t is well-settled [that] the use of a deadly weapon on a vital part of

the body is sufficient to establish a specific intent to kill.” Commonwealth

v. Nichols, 692 A.2d 181, 184-85 (Pa.Super. 1997). The trial court’s

discussion of the risk posed by strangulation is compelling on this point:

The critically dangerous nature of strangulation on the neck is
axiomatic, . . . because of the impact of crushing the airway and
blocking off the flow of blood and oxygen to the brain . . . which
is responsible for spontaneous respirations. Obviously[,] the
carotid arteries which supply oxygen[-]rich blood from the heart
to the brain are at grave risk in strangulation cases such as this
....

Trial Court Opinion, 10/10/18, at 24. As such, Appellant’s use of the rope to

strangle the victim violently enough to leave visible marks on her neck and

produce palpable terror in her demeanor also permits an inference of specific

intent to kill or cause serious physical injury. See, e.g., Commonwealth v.

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Harvey, 526 A.2d 330, 334 (Pa. 1987) (holding that “tightening a strap

around a person’s neck” with “force and violence” was indicative of specific

intent); see also, e.g., Commonwealth v. Johnson, 327 A.2d 124, 127

(Pa. 1974) (holding that “placing a knotted cord around the neck of an elderly

woman and so rigging it as to strangle are consistent with” specific intent). 4

Based upon the reasoning above, we hold that Appellant’s attempted

strangulation-by-hanging permitted an inference of specific intent to cause

serious bodily injury. As such, we hold that the Commonwealth presented

sufficient evidence to sustain Appellant’s conviction for aggravated assault.

Appellant has also challenged the sufficiency of the evidence underlying

his conviction for persons not to possess firearms. See 18 Pa.C.S.

§ 6105(a)(1). Four guns were seized from Appellant’s apartment, only one of

which was found to be operable.5 See N.T. Trial, 8/23/17, at 37-41. In

relevant part, Appellant claims that: (1) the Commonwealth failed to

sufficiently rebut a question raised at trial as to whether the at-issue guns are

considered “antique firearms” pursuant to 18 Pa.C.S. § 6118(a) (“This

____________________________________________

4 We note that the holdings in both Harvey and Johnson relate to cases
where the victims were actually killed via strangulation. We cite them for the
limited proposition that in the context of ligature strangulation, an assailant’s
specific intent can be inferred from the manner of the assault.

5 Appellant’s argument suggests that only a firearm that is “operable” can
trigger a conviction under § 6105. However, that requirement has been
abrogated by statutory changes that took effect well before the events of this
case transpired. See Commonwealth v. Thomas, 988 A.2d 669, 671
(Pa.Super. 2009) (citing 18 P.S. § 4628).

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subchapter shall not apply to antique firearms.”); and (2) failed to establish

that Appellant “possessed” the at-issue firearms.

We note that Appellant introduced only his uncorroborated testimony to

suggest that any of these guns fell under any of the relevant statutory

definitions of “antique firearms.” See 18 Pa.C.S. § 6118(c); see also N.T.

Trial, 8/23/17, at 121-23. Pennsylvania case law suggests that a defendant

carries the burden of proof in this arena. See Commonwealth v. Wolfgang,

97 A.3d 1274, 1280 n.8 (Pa.Cmwlth. 2014) (stating that a defendant must

establish the applicability of § 6118(a) “in fact and in law”).6 Even assuming,

arguendo, that Appellant had established that all of these guns were antique

firearms, § 6118(a) does not apply “to the provisions of section 6105 (relating

to persons not to possess, use, manufacture, control, sell or transfer firearms)

if such antique firearms . . . are suitable for use.” 18 Pa.C.S. § 6118(b)

(“Exception.”). Appellant was charged pursuant to § 6105(a), and the

Commonwealth’s expert testified that at least one of the seized guns was fully

operational and suitable for use. As such, the exception applies and

Appellant’s claim on this point is unavailing.

Appellant’s sufficiency argument regarding the element of possession is

equally meritless, as Appellant admitted at trial to possessing all of the

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6 While “[t]his Court is not bound by the decisions of the Commonwealth
Court,” such decisions “provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010).

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firearms seized from his apartment. See N.T. Trial, 8/23/17, at 121-23.

Therefore, no relief is due on this claim.

Appellant similarly challenges the sufficiency of his conviction for PWID,

based upon the methamphetamine seized from his apartment. He asserts

that the Commonwealth failed to establish that he: (1) possessed the

narcotics seized from the apartment; and (2) with the necessary intent to

“deliver.” See Appellant’s brief at 36-40.

The following additional legal principles will guide our review:

Since the police did not find any narcotics on Appellant’s person,
the Commonwealth was required to prove that Appellant
constructively possessed the [narcotics found at his apartment].
Constructive possession is the ability to exercise conscious control
or dominion over the illegal substance and the intent to exercise
that control. The intent to exercise conscious dominion can be
inferred from the totality of the circumstances.

Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super. 2003) (internal

citations omitted).

Reviewing the totality of the circumstances as presented at trial, the

Commonwealth adduced testimony that several individually packaged bags of

methamphetamine were seized from various places in Appellant’s apartment.

See N.T. Trial, 8/22/17, at 83, 90. Appellant claims that the narcotics

belonged to either the victim or a former housemate that moved out shortly

before this controversy began, but Appellant’s own testimony at trial indicates

that the parties enjoyed joint control and equal access to the areas where

drugs were discovered. See N.T. Trial, 8/23/17, at 203-04. As such, the jury

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could have readily inferred that Appellant constructively possessed the at-

issue narcotics. See Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa.

1986) (constructive possession of narcotics established where multiple parties

lived in an apartment where narcotics were located and enjoyed “joint control

over and equal access to the area” where narcotics were ultimately found).

Appellant’s argument on this point fails.

With respect to establishing Appellant’s intent to deliver, the

Commonwealth presented testimony that a digital scale, numerous plastic

bags commonly used for packaging narcotics, and notebooks containing

information on the manufacture of methamphetamine were seized from a

locked drawer belonging to Appellant. See N.T. Trial, 8/22/17, at 90-92; see

also N.T Trial, 8/23/17, at 203-06.

The Commonwealth presented expert testimony that: (1) confirmed

that the various containers of a crystalline substance seized from Appellant’s

apartment were, in fact, methamphetamine, see N.T. Trial, 8/23/17, at 18-

21; and (2) opined at length that the evidence seized from Appellant’s

apartment indicated his involvement in the regular distribution of

methamphetamine, including the residue in empty bags, the packaging of the

narcotics for sale, the presence of the digital scale, and the content of the

notebooks that included specific instructions and notations regarding the

manufacture and sale of methamphetamines. Id. at 58-83.

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We also note that Appellant was in possession of at least one operable

handgun at the time of his arrest. Furthermore, none of the drug

paraphernalia seized from Appellant’s apartment related to his personal use

of methamphetamine as Appellant stated that he only personally used

marijuana, which also leads to a reasonable inference that the

methamphetamine was intended for distribution. Id. at 123-24.

In sum, Appellant’s argument with respect to intent boils down to an

assertion that the Commonwealth could not establish his intent to deliver

without further evidence of “direct sales” actually carried out by Appellant.

See Appellant’s brief at 40. However, this Court has previously held that the

Commonwealth may establish intent to deliver via entirely circumstantial

evidence. See Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa.Super.

2005). Overall, the evidence was sufficient for the jury to infer Appellant’s

intent to deliver narcotics, specifically methamphetamine. See

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007) (holding

that factors auguring in favor of a finding of intent to deliver include

individualized packaging of the narcotics, the presence of unused baggies,

expert testimony, the defendant’s possession of a handgun, and the absence

of drug paraphernalia related to personal use). No relief is due on this claim.

Appellant’s fourth issue challenges the trial court’s denial of his

suppression motion, which requested the exclusion of evidence discovered and

seized by the Marcus Hook Police Department during their protective sweep

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and consent search of Appellant’s apartment. See Appellant’s brief at 17-29.

Appellant has styled this inquiry as involving two separate questions: (1)

whether the protective sweep carried out by law enforcement was legally

valid; and (2) whether Appellant’s consent to search was properly obtained.

In addition to defending the validity of the protective sweep, the

Commonwealth argues that Appellant’s subsequent and voluntary consent to

a search of his apartment renders the evidence admissible even if the

protective sweep is invalidated. See Commonwealth brief at 17.

These claims necessarily implicate the rulings of the trial court on

matters of suppression. The following legal principles will guide our review:

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.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015) (internal

citations omitted).

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The initial portion of Appellant’s fourth claim concerns the alleged

“protective sweep” conducted by the Marcus Hook Police Department incident

to Appellant’s arrest outside of his apartment. Appellant challenges the trial

court’s conclusion that “Officer Barnett and other officers rightfully conducted

a protective sweep of [Appellant’s] apartment to reduce any threat and secure

what would be the focus of a criminal investigation.” See Order, 1/23/17, at

unnumbered 5. In this context, a “protective sweep” is “a quick and limited

search of premises, incident to an arrest and conducted to protect the safety

of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327 (1990).

Prior to issuing its ruling, the trial court held a suppression hearing at which

Officer Barnett testified as to the events of that evening. See N.T.

Suppression Hearing, 3/22/16, at 5-102.

It is not clear that the protective sweep in this case was supported by

the factual circumstances, as the immediate danger to the victim had passed

when officers took Appellant into custody. See Commonwealth v. Wright,

742 A.2d 661, 664-65 (Pa. 1999) (holding that police are not permitted to

undertake a warrantless search following an incident of domestic violence

where “the potential for imminent violence had been eliminated” and “there

was no indication that the safety of others was threatened, evidence might be

lost or destroyed, or police lacked the ability to maintain security at the

premises pending the issuance of a search warrant”). Furthermore, the

entrance to Appellant’s apartment was located on the second story of the

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building and accessible only via an iron staircase, which was not in close

proximity to the immediate location of Appellant’s arrest. See

Commonwealth v. Taylor, 771 A.2d 1261, 1267-68 (Pa. 2001) (“Because

the sweep in the present case extended beyond the area within the immediate

vicinity of the arrest, there must be articulable facts which . . . would warrant

a reasonably prudent officer in believing that the area to be swept harbors an

individual posing a danger . . . .”).

Instantly, there was no testimony adduced at the suppression hearing

that could have established a reasonable belief that additional assailants may

have been lying in wait for law enforcement once Appellant had been taken

into custody. While the victim’s warnings to law enforcement regarding

Appellant’s risk for violence were certainly sufficient to put officers on their

guard, that threat dissipated completely with Appellant’s peaceful surrender

at the bottom of the staircase to his apartment.

Assuming, arguendo, that the at-issue protective sweep was not

appropriate under the circumstances, Appellant’s consent to search his

apartment was nonetheless validly obtained by the Marcus Hook Police

Department. This distinction ultimately renders the search and seizure of

evidence from Appellant’s apartment valid.7 See Commonwealth v. Reid,

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7 This rationale differs from that relied upon by the trial court in its Rule
1925(a) opinion and the underlying ruling. “It is well[-]settled that where the
result is correct, an appellate court may affirm a lower court’s decision on any

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811 A.2d 530, 543 (Pa. 2002) (“If the court finds that an illegal seizure

preceded an alleged consent but the consent was not caused by the illegal

seizure . . . , the court must then determine whether the prosecution has

adequately proven that the consent was made voluntarily . . . .”). Instantly,

there is no allegation that the protective sweep somehow “caused” Appellant

to give his consent. To the contrary, the testimony presented by the

Commonwealth at the suppression hearing uniformly indicates that police did

not utilize any arguable “fruits” of its protective sweep in obtaining consent

from Appellant.

Thus, the question is whether Appellant’s consent was freely given. “In

determining the validity of a given consent, the Commonwealth bears the

burden of establishing that a consent is the product of an essentially free and

unconstrained choice—not the result of duress or coercion, express or implied,

or a will overborne—under the totality of the circumstances.”

Commonwealth v. Krenzel, 209 A.3d 1024, 1028 (Pa.Super. 2019). While

there is no “hard and fast list of factors” that are relevant to this

determination, some considerations include: (1) the defendant’s custodial

status; (2) the use of duress or coercive tactics by law enforcement personnel;

(3) the defendant’s knowledge of his right to refuse to consent; (4) the

defendant’s education and intelligence; (5) the defendant’s belief that no

____________________________________________

ground without regard to the ground relied upon by the lower court itself.”
Commonwealth v. Singletary, 803 A.2d 769, 772-73 (Pa.Super. 2002).

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incriminating evidence will be found; and (6) the extent and level of the

defendant’s cooperation with the law enforcement personnel. Id.

Appellant has asserted that his consent was coerced, but his argument

is threadbare. His only claims of duress are that: (1) he was taken into

custody by multiple officers of the Marcus Hook Police Department and placed

in handcuffs; (2) he was informed that police would seek a warrant if he

refused his consent; and (3) he signed an allegedly incorrectly dated consent-

to-search form. See Appellant’s brief at 27-28.

The trial found these allegations insufficient to overcome the

uncontroverted testimony at the suppression hearing that Appellant’s consent

was freely offered by way of cooperation with law enforcement. See N.T.

Suppression Hearing, 3/22/16, at 24 (“[R]ight as we were reaching the car,

he told us that he didn’t want to give us a hard time, and that he would consent

to a search.”). There is no evidence that police attempted to coerce

Appellant’s consent, and simply being placed into custody does not qualify as

per se duress for the purposes of assessing the voluntariness of consent. See

U.S. v. Watson, 423 U.S. 411, 423 (1976) (“[T]he fact of custody alone has

never been enough in itself to demonstrate a coerced confession or consent

to search.”). Furthermore, the mere fact that Appellant was informed that

police would apply for a warrant is also of no moment. See Commonwealth

v. Mack, 796 A.2d 967, 971-72 (Pa. 2002) (“Although the police informed

Appellant that they ‘would have to get a warrant’ if she refused her consent,

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this accurate statement informed Appellant of the true nature of her

predicament, . . . . [I]t is not a coercive tactic by the police.”).

Overall, there is no indication of undue coercion by law enforcement.

Because Appellant’s consent was freely given and not connected to the earlier

seizure of his apartment by the Marcus Hook Police Department, any arguable

taint from the protective sweep is excused. See Commonwealth v.

Strickler, 757 A.2d 884, 888-89 (Pa. 2000) (holding consent to search is

validly given even if preceded by an illegal seizure so long as consent was not

the product of that illegal seizure); see also Reid, supra at 547. Thus, no

relief is due on Appellant’s fourth issue.8

Appellant next raises a challenge to the weight of the evidence with

respect to the same three offenses implicated by his sufficiency arguments.

See Appellant’s brief at 41-43. At the outset, we note that these claims were

properly preserved in the trial court via a post-sentence motion. The following

legal standards will govern our review:

Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
____________________________________________

8 Appellant has also included a claim that the police violated the scope of
consent by opening a locked drawer in Appellant’s apartment with a
screwdriver during the search of Appellant’s apartment. Appellant has waived
this claim for failing to raise it before the trial court. Appellant’s three separate
suppression motions make no argument concerning an alleged violation of the
scope of Appellant’s consent and the issue was not raised at the suppression
hearing. As such, 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.”).

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presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted, emphasis in original). In its Rule 1925(a) opinion, the trial court

detailed the evidence adduced against Appellant and concluded that “[t]he

weight of the evidence at trial overwhelmingly supported [Appellant’s]

convictions.” Trial Court Opinion, 10/10/18, at 35.

Appellant’s arguments are cursory and unpersuasive. Indeed, much of

Appellant’s discussion conflates the distinct issues of sufficiency and weight

by reasserting arguments that concern whether the Commonwealth’s

evidence supported the underlying convictions. However, “a true weight of

the evidence challenge concedes that sufficient evidence exists to sustain the

verdict but questions which evidence is to be believed.” Commonwealth v.

Morgan, 913 A.2d 906, 909 (Pa.Super. 2006). “Accordingly, a weight of the

evidence challenge contests the weight that is afforded the testimonial

evidence.” Id.

The only credibility arguments presented by Appellant concern minor

chronological inconsistencies in the testimony of the police officers called at

trial. See Appellant’s brief at 42-43. However, mere conflicts in the testimony

of the Commonwealth’s witnesses do not serve to completely undermine the

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weight of the evidence against Appellant, particularly where the jury has been

provided with a fair opportunity to assess those inconsistencies and reach its

own determination. See Commonwealth v. Stiles, 143 A.3d 968, 980-81

(Pa.Super. 2016) (rejecting arguments that a verdict is against the weight of

the evidence based solely upon “various inconsistencies in the testimony and

pretrial statements” of Commonwealth witnesses); see also

Commonwealth v. Home, 89 A.3d 277, 285-86 (Pa.Super. 2014) (same).

We discern no abuse of discretion by the trial court. As such, this claim fails.

Appellant’s next issue addresses the respective testimonies of Officer

Barnett and the victim’s mother. Specifically, Appellant avers that the trial

court erred in admitting hearsay testimony at trial from both individuals based

upon the exception for “excited utterances” made by the victim immediately

after Appellant’s assault. See Appellant’s brief at 43-49.

This claim arises pursuant to evidentiary rulings made by the trial court.

In this context, “[a]ppellate courts review evidentiary decisions for an abuse

of discretion.” Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017).

“An abuse of discretion is not merely an error in 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.” Id.

Under the Pennsylvania Rules of Evidence, “hearsay” is defined as a

statement that: (1) the declarant does not make while testifying at the current

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trial or hearing; and (2) a party offers in evidence to prove the truth of the

matter asserted in the statement. See Pa.R.E. 801(c)(1)-(2). As a general

rule, hearsay is not admissible under Pennsylvania law. See Pa.R.E. 802.

However, there are a number of exceptions to this general maxim, including

one for statements that qualify as an “excited utterance.” See Pa.R.E. 803(2).

For our purposes, an excited utterance is defined as “[a] statement relating

to a startling event or condition, made while the declarant was under the

stress of excitement that it caused.” Id.

With reference to potential temporal issues surrounding this hearsay

exception, an official comment to the Rules of Evidence explains as follows:

[A]n excited utterance: (1) need not describe or explain the
startling event or condition; it need only relate to it; and (2) need
not be made contemporaneously with, or immediately after, the
startling event. It is sufficient if the stress of excitement created
by the startling event or condition persists as a substantial factor
in provoking the utterance.

There is no set time interval following a startling event or condition
after which an utterance relating to it will be ineligible for
exception to the hearsay rules as an excited utterance. In
Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa.Super.
1978), the [Superior Court] explained:

The declaration need not be strictly contemporaneous with
the existing cause, nor is there a definite and fixed time limit
. . . . Rather, each case must be judged on its own facts,
and a lapse of time of several hours has not negated the
characterization of a statement as an “excited utterance.”
. . . The crucial question, regardless of the time lapse, is
whether, at the time the statement is made, the nervous
excitement continues to dominate while the reflective
processes remain in abeyance.

Official Comment to Pa.R.E. 803(2) (emphasis added).

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The testimony adduced at trial indicated that the victim ran to her

mother’s house immediately after the assault, which is approximately one-

half of one block away from Appellant’s home. See N.T. Trial, 8/22/17, at 32-

33. After responding to the victim’s banging on her door, the victim’s mother

testified that she was “hysterical and crying.” Id. at 32, 42. At this point,

the victim spontaneously stated that Appellant had tried to “hang” or

“strangle” her. Id. at 32-33. The police were summoned.

When he arrived at the scene minutes later, Officer Barnett’s description

of the victim is in parity with that of her mother. He also described her as

“hysterical,” but went into greater detail: “She was sobbing crying. Her face

was bright red. She could barely catch her breath. She just kept shaking her

hands like she didn’t know what to do with herself, breathing heavy. She just

looked in my experience terrified and upset.” Id. at 57-58. In fact, the

victim’s level of agitation was so extreme that she was seen “running up and

down the street” after the assault, id. at 41-42, and was pacing throughout

her interactions with law enforcement. Id. at 57. Despite her agitated state,

the victim managed to tell the police that Appellant had attempted to strangle

her with a rope in response to questioning from police.9 Id. at 59.

____________________________________________

9 Appellant asserts that the fact that the victim’s statement to police were
made in response to “direct questioning” from the police. However, “[t]he
weight of authority in this Commonwealth is that responses to questions are
not, per se, excluded from consideration as excited utterances.”

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Based on this testimony, we find no abuse of discretion in the trial

court’s ruling that the assault was sufficiently “startling” to render these

statements “excited utterances” within the meaning of Pennsylvania’s hearsay

jurisprudence. See Commonwealth v. Barnyak, 639 A.2d 40, 43-44

(Pa.Super. 1994) (holding that statements made by a “panic stricken”

shooting victim at the hospital in response to police questioning were

admissible under the “excited utterance” hearsay exception).

As the trial court further noted, these statements also appear to have

occurred in close chronological proximity to the assault. Although there is not

a definitive timeline, the testimony adduced at trial indicates that the events

discussed above transpired in a mere matter of minutes. See N.T. Trial,

8/22/17, at 33, 36, 57 (establishing that the victim’s mother called the police

after her daughter’s initial utterances, and that police responded to that call

within two minutes). As such, we discern no abuse of discretion in the trial

court’s conclusion that these statements were also close enough in time to the

assault to qualify as “excited utterances” for hearsay purposes. See

Commonwealth v. Hess, 411 A.2d 830, 834 (Pa.Super. 1979) (collecting

____________________________________________

Commonwealth v. Sanford, 580 A.2d 784, 789 (Pa.Super. 1990),
abrogated on separate grounds, Crawford v. Washington, 541 U.S. 36
(2004). The mere fact that the victim’s utterances were made in response to
questions posed by law enforcement does not automatically remove it from
this exception to hearsay. Id.

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J-A21015-19

cases). Overall, we find no abuse of discretion in the trial court’s ruling on

this issue. Appellant is entitled to no relief on this claim.

Appellant has also raised a claim challenging other testimony from the

victim’s mother concerning a phone conversation she had with the victim

immediately prior to trial. Id. at 49-51. The victim’s mother testified that

the victim told her that she was still “scared” of Appellant. Id. at 50.

Appellant objected to this testimony on the basis of hearsay, and it was

admitted pursuant to the “state of mind” exception. Id. at 49-51; see also

Pa.R.E. 803(3) (providing that the rule against hearsay does not apply to “[a]

statement of the declarant’s then-existing state of mind . . . or emotional,

sensory, or physical condition,” including any “mental feeling”).

Appellant essentially asserts that there was no legitimate reason for this

testimony to be admitted. However, this Court has previously upheld the

admission of such testimony under the state-of-mind exception where such

evidence speaks to a relevant factor in the case. See Commonwealth v.

Luster, 71 A.3d 1029, 1041 (Pa.Super. 2013) (“[H]earsay evidence

concerning the victim’s state of mind is admissible only where the victim’s

state of mind is a ‘factor in issue’ at trial.”). Instantly, evidence of the victim’s

continuing fear of Appellant speaks to his ill will or malice, which is certainly

relevant with respect to the charge of aggravated assault. See

Commonwealth v. Kunkle, 79 A.3d 1173, 1185 (Pa.Super. 2013) (“[T]he

victim’s statements were admissible because they reflect Appellant’s ill will

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and malice toward the victim.”) (citing Commonwealth v. Luster, 71 A.3d

1029, 1041 (Pa.Super. 2013)). Thus, no relief is due on this claim.

Appellant’s penultimate issue involves allegations that the

Commonwealth committed discovery violations under the framework provided

by Brady v. Maryland, 373 U.S. 83 (1963) (holding that prosecution’s

suppression of evidence favorable to accused violates due process where

evidence is material to guilt or punishment, irrespective of prosecution’s good

or bad faith). In particular, Appellant asserts that the Commonwealth

committed Brady violations by allegedly suppressing: (1) videotape

recordings of the police station on the evening of the assault; and (2) a full

report from the lab technician that tested the narcotics in this case. See

Appellant’s brief at 51-54. The trial court found no Brady violation. We agree.

Our Supreme Court has discussed the legal standards attendant to this

area of the law as follows: “To establish a Brady violation, a defendant must

show: the prosecution suppressed the evidence, either willfully or

inadvertently; the evidence is favorable to the defense; and the evidence is

material.” Commonwealth v. Birdsong, 24 A.3d 319, 327 (Pa. 2011)

(cleaned up). We emphasize that a defendant bears the burden of establishing

these elements by reference to the certified record. See Commonwealth v.

Paddy, 15 A.3d 431, 451 (Pa. 2011).

Applying this rubric, it is clear that both of Appellant’s claims are

meritless. Beyond failing to discuss any of the relevant legal standards that

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undergird our analysis of alleged Brady violations, Appellant has failed to

establish any of the three required prongs. It is entirely unclear based upon

Appellant’s references to the factual record when (or if) the Commonwealth

ever possessed these complained-of discovery materials. Furthermore,

Appellant’s arguments present only a mere possibility that these items may

have provided the basis for “testing” the credibility of the Commonwealth’s

witnesses and their averments. See Appellant’s brief at 53 (“The purpose of

the discovery of the videos was to test the credibility of Officer Barnett.”); see

also id. at 54 (offering no favorability or materiality justifications regarding

the technician’s report). In sum, Appellant has failed to articulate how this

evidence was either beneficial or material beyond pure conjecture. Such

speculative arguments are insufficient:

Evidence is only material if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different. The mere possibility
that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the
trial, does not establish materiality in the constitutional
sense.

Birdsong, supra at 327 (emphasis added). No relief is due.

In his final claim, Appellant avers that the sentencing court erred in

treating Appellant as a “third-strike offender” pursuant to 42 Pa.C.S. § 9714.

This issue implicates the legality of Appellant’s sentence. See

Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001).

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Consequently, “our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa.Super. 2017).

In pertinent part, the at-issue statutory provision provides as follows:

(a) Mandatory sentence.--

(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary. . . .

(2) Where the person had at the time of the commission of
the current offense previously been convicted of two or
more such crimes of violence arising from separate criminal
transactions, the person shall be sentenced to a minimum
sentence of at least 25 years of total confinement,
notwithstanding any other provision of this title or other
statute to the contrary. . . .

(a.1) Mandatory maximum.— An offender sentenced to a
mandatory minimum sentence under this section shall be
sentenced to a maximum sentence equal to twice the mandatory
minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
to sentence of imprisonment for felony) or any other provision of
this title or other statute to the contrary.

....

(d) Proof at sentencing.-- . . . . The sentencing court, prior to
imposing sentence on an offender under subsection (a), shall have
a complete record of the previous convictions of the offender
....

(e) Authority of court in sentencing.—There shall be no
authority in any court to impose on an offender to which this
section is applicable any lesser sentence than provide for in
subsections (a) and (a.1) . . . .

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42 Pa.C.S. § 9714. Under this framework, Appellant was sentenced to twenty-

five to fifty years of imprisonment with respect to this conviction for

aggravated assault. See Sentencing Order, 10/11/17, at ¶ 1.

Throughout his discussion of this issue, Appellant repeatedly asserts

that the certified record does not adequately support a finding that the

sentencing court complied with § 9714(d) by reviewing the “complete record”

regarding Appellant’s prior felony convictions. See Appellant’s brief at 58-59

(citing Commonwealth v. Norris, 819 A.2d 568, 575-76 (Pa.Super. 2003)

(remanding for resentencing where “it does not appear that the sentencing

court had before it [the defendant’s] complete record of prior convictions”)).

Appellant’s claim is both legally meritless and factually inaccurate. The

Commonwealth provided the sentencing court with certified copies of the

records regarding Appellant’s predicate convictions under § 9714. See N.T.

Sentencing, 10/4/17, at 3-5. These records, together with the testimony at

the hearing, established that Appellant was convicted of multiple counts of

burglary in 1997.10 Id. at 3-15. After completing his term of imprisonment

with respect to those charges and while still on probation, Appellant was

convicted of aggravated assault in 2001. Id. Thus, we find Appellant’s

attempts to cast doubt upon the content of the certified record unavailing.

____________________________________________

10 In this claim, Appellant includes an allegation that the Commonwealth failed
to establish that his prior convictions for burglary were “crimes of violence”
under § 9714. This claim is waived as a result of Appellant’s failure to include
it in his Rule 1925(b) concise statement. See Pa.R.A.P. 1925(b)(4)(vii).

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With respect to the remainder of Appellant’s argument, we discern that

Appellant is arguing that his prior felony convictions were too close-in-time to

one another to permit the trial court to treat them as first-strike and second-

strike offenses, respectively. According to Appellant, such treatment violates

the “recidivist philosophy” underlying § 9714 as identified by our Supreme

Court in Commonwealth v. McClintic, 909 A.2d 1241, 1249 (Pa. 2006)

(“[E]ach strike that serves as a predicate offense must be followed by

sentencing and, by necessary implication, an opportunity for reform, before

the offender commits the next strike.”).

Appellant’s reliance upon this case law is misplaced. The holding in

McClintic involved a situation where the Commonwealth attempted to utilize

multiple crimes from the “same criminal episode” to serve as “separate

sentence enhancements” under § 9714. Instantly, all of Appellant’s

underlying felony convictions related to distinct, prior criminal episodes.

Contrary to Appellant’s arguments, he had ample years between his respective

1997 convictions for burglary, his 2001 conviction for aggravated assault, and

his 2017 conviction for aggravated assault in which to seize an “opportunity

for reform.” He declined to do so, to his detriment. No relief is due.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/20

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