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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL HERNANDEZ-SANTANA, :
:
Appellant : No. 2327 EDA 2022
Appeal from the Judgment of Sentence Entered July 15, 2022
In the Court of Common Pleas of Lehigh County
Criminal Division at CP-39-CR-0002656-2020
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 22, 2023
Michael Hernandez-Santana (Appellant) appeals from the judgment of
sentence imposed after a jury found him guilty of persons not to possess
firearms.1 We affirm.
The trial court thoroughly recounted the underlying facts:
On May 22, 2020, at approximately 10:00 P.M., the City of
Bethlehem Police Department received a report of shots fired in
the 1500 block of Kadel Drive, Bethlehem, Lehigh County,
Pennsylvania. Members of the City of Bethlehem Police
Department responded to the call. Upon arrival, Bethlehem police
officers made contact with the victim, Joel Herrera [(Mr.
Herrera)], who reported that [Appellant] … displayed and fired a
handgun during a dispute. Mr. Herrera provided the City of
Bethlehem police officers with home security [video] footage that
depicted a silver, box-like SUV fleeing from the 1500 block of
Kadel Drive.
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1 18 Pa.C.S.A. § 6105(a)(1).
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A patrol alert regarding the shooting was issued to all
members of the City of Bethlehem Police Department[,] which
included the suspect’s name, “Michael Hernandez,” and the
description of the vehicle in which the suspect fled the scene. …
[T]he vehicle was described as … [being] either a Nissan or a
Scion. Officer Michael Koblish [(Officer Koblish)] of the City of
Bethlehem Police Department, assigned to the patrol division,
recognized the name of the suspect as he was familiar with
[Appellant] from prior encounters with him. Consequently, Officer
Koblish drove to the area of [Appellant’s] residence on Monroe
Street in Bethlehem to look for him and/or the vehicle, but to no
avail.
The next day, on May 23, 2020, … Officer Koblish again tried
to locate [Appellant]. He drove to the area of 4th and Monroe
Streets and observed a “boxy” silver Scion that matched the
description of the vehicle from the prior day. The vehicle was
parked or idling in front of [Appellant’s] residence located at 330
Monroe Street, Bethlehem, Lehigh County. Being aware of the
“shots fired” call the previous day and being familiar with
[Appellant], Officer Koblish followed the subject vehicle when it
pulled away from the residence. While following the vehicle,
Officer Koblish ran the registration plate and learned that the
vehicle was not registered to [Appellant], but rather to Eric Garcia
[(Mr. Garcia)]. Officer Koblish observed the driver turn left onto
Hill Street and then make a right turn onto Mechanics Street
without using a right turn signal. Consequently, Officer Koblish
conducted a traffic stop of the [] silver SUV for this observed traffic
violation.
The vehicle was stopped in the 1100 block of Mechanics
Street, in front of Cholo’s Auto Repair and Towing [(Cholo’s)]. The
driver and the passenger immediately exited the vehicle. Officer
Koblish recognized the driver as [Mr.] Garcia from the National
Crime Information Center photograph[, after performing a search
of] the vehicle’s registration [number,] and [recognized] the front
seat passenger as [Appellant]…. Officer Koblish ordered the
occupants back in the vehicle and called for assistance[,] in light
of the circumstances allegedly involving [Appellant] and a firearm
from the previous day. Briefly thereafter, Officer Trevor
Tomaszewski [(Officer Tomaszewski)] and Officer Joseph
Brylewski [(Officer Brylewski)] arrived, as did Officer Joshua
Hobson [(Officer Hobson)].
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Upon approaching the driver[’s] side of the vehicle, Officer
Koblish explained why a traffic stop had been effectuated to the
driver, Mr. Garcia. He requested that Mr. Garcia provide … his
license, registration, and insurance information. …
Initially, while Officer Koblish was speaking with Mr. Garcia,
Officer[s] Tomaszewski and [] Brylewski were speaking with
[Appellant]. During the traffic stop, Mr. Garcia indicated that
he had driven [Appellant] to the 1500 block of Kadel Drive
the previous day. He related that [Appellant] had exited the
vehicle alone, while Mr. Garcia waited for him in the car. Mr.
Garcia further explained that he saw a third party holding a
baseball bat as [Appellant] entered Mr. Garcia’s car. Mr. Garcia
described that [Appellant], with a gun in his pocket,
immediately exited the vehicle and shot a round into the
ground.
Although English was not Mr. Garcia’s primary language, he
was proficient both speaking and understanding English. Officer
Koblish asked Mr. Garcia for consent to search the vehicle. Mr.
Garcia granted both verbal and written consent.
Both occupants were asked to exit the vehicle. [Appellant]
exited the vehicle on his own accord and stood … [near] the …
vehicle on the sidewalk. [Appellant] was leaning against the
exterior building of Cholo’s garage and smoking a cigarette.
Officer Koblish and Officer Tomaszewski searched the
subject vehicle but did not locate any contraband or firearms.
During the search, Officer Hobson remained with [Appellant] while
Officer Brylewski stayed with Mr. Garcia. After the search was
concluded, Officer Koblish returned the documents to Mr. Garcia
and advised him that he was free to leave. Mr. Garcia then
entered the building to Cholo’s….
When Officer Koblish finished conversing with Mr. Garcia, he
walked over to join Officer Hobson in speaking with [Appellant]
about the location of the firearm. During this conversation, both
Officer Koblish and Officer Hobson were calm, conversational, and
respectful. While all of the officers were dressed in full uniform
and carrying their police[-]issued handguns, none of the officers
unholstered their firearms. Indeed, none of the officers
threatened to or displayed their weapon. [Appellant] was not
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restrained in any manner during the traffic stop. He was neither
placed in a patrol vehicle nor transported to a different location.
Miranda rights were not provided to [Appellant. See
Miranda v. Arizona, 384 U.S. 436 (1966) (holding that
statements obtained from defendants during a custodial
interrogation, without full warning of constitutional rights, are
inadmissible under the Fifth Amendment)].
Officer Koblish inquired of [Appellant] about the previous
day. In particular, Officer Koblish asked questions regarding the
whereabouts of the firearm that was discharged the day before on
Kadel Street. Officer Koblish also requested permission to search
[Appellant’s] residence, which was denied.
[Appellant’s] primary language is Spanish and none of the
officers present were fluent in this language. As [Appellant’s] use
of the English language is limited, the officers did their best to
communicate with [Appellant]. In fact, until Officer Hobson was
able to secure an interpreter on the telephone, Mr. Garcia himself
assisted the officers at times in the interpretation for [Appellant].
Although [Appellant] did mention the English word “lawyer,”
he was speaking to Mr. Garcia at the time. This specific
conversation was in regard to [Appellant] not consenting to the
search of his residence. At no time did [Appellant]
unequivocally request an attorney or refuse to answer the
questions being posed to him.
Officer Koblish was not present when [Appellant] made
statements about the location of the firearm. However, Officer
Hobson was present. When speaking with [Appellant]
through the aid of the interpreter on the phone, [Appellant]
admitted that he had a black handgun and that he had
disposed of the firearm by throwing it off the
Freemansburg Bridge into the river following the shooting.
At the conclusion of the questioning, [Appellant] was told
that he was free to leave and that he could go home.
[Appellant] was not placed under arrest and taken into police
custody.
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Trial Court Opinion, 5/28/21, at 2-7 (emphasis added; citations, footnotes,
and numbering omitted; some capitalization modified).
The trial court further explained:
Detective Sergeant Bradford Jones [(Detective Sergeant
Jones)] of the City of Bethlehem Police Department was assigned
to [investigate the shooting on Kadel Drive and any associated
evidence.] … On May 27, 2022, Detective Sergeant Jones
returned to Kadel Drive to canvas the neighborhood for witnesses
of the events that unfolded on May 22, 2020. He encountered one
resident who [recalled that evening hearing] a “firecracker” and
then saw a car speeding away from the area. With the assistance
of daylight, Detective Sergeant Jones again looked for the spent
[bullet shell] casing, but to no avail. After learning [Appellant]
stated that he had disposed of the firearm, Detective Sergeant
Jones coordinated with the Bethlehem Fire Department Rescue
Team and utilized fishing magnets to attempt to recover the
firearm from the river. [Police did not recover a firearm.]
Moreover, on May 25, 2020, Detective Sergeant Jones
obtained a search warrant for [Appellant’s] residence…. From this
residence, firearm-related items were recovered. Specifically, in
[Appellant’s] bedroom, a spent 9 mm Luger shell casing and a live
9 mm Luger round were found, along with two (2) 38 special live
rounds. … In addition, a 12[-]gauge live shotgun shell was found
in the kitchen cabinet. Detective Sergeant Jones sent the shell
casings and live rounds to the Lehigh County Firearms Lab for
Detective Mark Garrett [(Detective Garrett)], a firearm and
toolmark examiner with the Lehigh County District Attorney’s
Office and an expert in the field of firearm and toolmark
examination, to analyze. Detective Garrett opined that one (1) of
the undischarged cartridges found at the scene …, the discharged
9 mm Luger cartridge … found in the master bedroom of
[Appellant’s] residence, and the undischarged 9 mm Luger
cartridge … found in the master bedroom … all cycled through the
same firearm. The other undischarged cartridge found at the
scene … did not have any fire pin impression/mark, and therefore
no conclusion could be reached as to whether or not that cartridge
was ever housed in the same firearm as the other cartridges.
Detective Sergeant Jones also applied for and acquired a
search warrant for the cellular phone that was seized by the
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authorities from [Appellant’s] person. The purpose of this search
warrant was to be able to extract digital content off of the cell
phone. [Appellant’s] cell phone was forwarded to the data lab for
analysis. Detective Jonathan Glick [(Detective Glick)] of the
Bethlehem Police Department, assigned to the Forensic
Services/Crime Scene Unit and … deemed an expert in the field of
digital forensics, was asked to extract … information from
[Appellant’s] cell phone and analyze same. Detective Glick
successfully extracted photographs off of the device, including a
photograph taken on May 2, 2020 at 3:36 A.M. of [Appellant]
holding a firearm. …
Trial Court Opinion, 8/8/22, at 8-9 (citations omitted).
Finally, the trial court explained:
A recorded prison [telephone] call between [Appellant] and
an unidentified female revealed, in pertinent part, the following
exchange:
[Appellant]: That’s fucked up, what gets me mad is, the
guy’s name is not on there, it’s the woman’s name, ratting
me out.
* * [*]
[Appellant]: Everyone is telling me in here that the charges
will be dropped because they don’t have the gun, if they
don’t have the gun ...?
Female: Well, so the gun one should get dropped, because
they don’t have it. If they had it, then you’re fucked.
[Appellant]: Yeah, that would be years, thirty.
Female: And I already took care of that.
[Appellant]: What?
Female: That.
[Appellant]: Where is it?
Female: I already took care of it, I’ll tell you later, you
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know I can’t say anything through here.
[Appellant]: I know, but don’t give it to anyone.
Female: Calm down, I already know.
[Appellant]: Alright, that’s mine, no one comes fucking
around with it later.
Finally, it is undisputed that [Appellant] has an April 4, 2017
conviction in Passaic County, New Jersey for N.J.S.A. § 2C:12-
1(B)(A), Aggravated Assault on Law Enforcement [(New Jersey
conviction)], a felony offense.
Id. at 10 (citing Commonwealth Exs. 24-26).
The Commonwealth charged Appellant with persons not to possess
firearms, as well as firearms not to be carried without a license, simple assault,
and harassment2 (remaining charges).
On March 17, 2021, Appellant filed an omnibus pre-trial motion (OPTM)
to suppress evidence/statements to police. Appellant claimed, “at the time of
the police questioning[, Appellant] was subjected to custodial interrogation,
or the equivalent thereof,” and police did “not provide[] … the requisite
Miranda warnings” at any time. OPTM, 3/17/21, ¶¶ 9 & 10. The trial court
held evidentiary hearings on March 31, 2021, and April 21, 2021. The trial
court denied the OPTM in an order and opinion filed May 28, 2021.
On October 29, 2021, the Commonwealth filed a motion in limine. The
Commonwealth asked the trial court to
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2 18 Pa.C.S.A. §§ 6106(a)(1), 2701(a)(3), 2709(a)(1).
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enter an order finding that New Jersey’s N.J.S.A[.] 2C:12-
1B(5)(a) aggravated assault on law enforcement[, (New Jersey
statute),3] is an equivalent crime to the enumerated offense
Section 2702 (relating to aggravated assault)[4] in 18 PA.C.S.A.
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3 The New Jersey statute provides, in pertinent part, as follows:
a. Simple Assault. A person is guilty of assault if the person:
(1) Attempts to cause or purposely, knowingly or recklessly
causes bodily injury to another….
***
b. Aggravated Assault. A person is guilty of aggravated assault if
the person:
***
(5) Commits a simple assault as defined in paragraph (1),
(2), or (3) of subsection a. of this section upon:
(a) Any law enforcement officer acting in the
performance of the officer’s duties while in uniform or
exhibiting evidence of authority or because of the
officer’s status as a law enforcement officer….
N.J.S.A. 2C:12-1B(5)(a) & (b).
4 Section 2702 of our Crimes Code provides in relevant part:
(a) Offense defined. A person is guilty of aggravated assault if
he:
(3) attempts to cause or intentionally or knowingly causes
bodily injury to any of the officers, agents, employees or
other persons enumerated in subsection (c), in the
performance of duty[.]
***
(Footnote Continued Next Page)
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§ 6105(b) as it pertains to 18 Pa.C.S.A. § 6105(a)(1) persons not
to possess firearms.
Motion in Limine, 10/29/21, at 2 (unnumbered) (footnotes added; some
capitalization modified). The trial court held a hearing on November 2, 2021,
and subsequently granted the Commonwealth’s motion in limine.
Appellant filed a motion for reconsideration. See Motion to Reconsider,
11/17/21, n.1 (claiming “the actus reus and mens rea provided in the New
Jersey statute are substantially broader than the allegedly corresponding
Pennsylvania statute. Compare N.J.S.A. 2C:12-1 with 18 Pa.C.S.A. §
2702(a)(3).”). The trial court denied Appellant’s motion to reconsider,
stating:
This court recognizes that “[i]n order to convict a defendant
for possession of a firearm by a prohibited person, the
Commonwealth must prove the defendant was previously
convicted of a specific offense enumerated in section 6105.”
Commonwealth v. Hewlett, 189 A.3d 1004, 1009 (Pa. Super.
2018), citing Commonwealth v. Jemison 98 A.2d 1254, 1261
(Pa. 2014). …
After focusing on and considering the elements of the
offenses as set forth in the statutes in both jurisdictions, this court
determined that N.J.S.A. 2C:12-1B(5)(a)[,] aggravated assault on
law enforcement[,] is an equivalent crime to aggravated
assault as enumerated in 18 Pa.C.S.A. § 6105(b).
____________________________________________
(c) Officers, employees, etc., enumerated. The officers,
agents, employees and other persons referred to in subsection (a)
shall be as follows:
(1) Police officer.
18 Pa.C.S.A. § 2702(a)(3) & (c)(1).
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Order, 12/20/21, n.1 (emphasis added; some capitalization modified).
The matter proceeded to a jury trial in April 2022.5 The parties
stipulated to Appellant’s New Jersey conviction. N.T., 4/27/22, at 79 (“It is
hereby stipulated [that Appellant] … has an April 4th, 2017 conviction in … New
Jersey[] for … aggravated assault on law enforcement, a felony offense.”).
The jury found Appellant guilty of persons not to possess firearms. The trial
court deferred sentencing for the preparation of a presentence investigation
report (PSI).6 Based on Appellant’s New Jersey conviction, the PSI stated that
Appellant had a prior record score (PRS) of 2. See N.T., 7/15/22, at 11.
Sentencing occurred on July 15, 2022. Prior to the imposition of
sentence, Appellant’s counsel argued, contrary to the PSI, that Appellant had
a PRS of 0, as the New Jersey statute is not equivalent to 18 Pa.C.S.A.
§ 2702(a)(3). See id. at 6-10. The prosecutor disagreed. See id. at 11
(arguing Section “2702(a)(3), aggravated assault … on police, would be the
appropriate equivalent statute[,] which has a prior record score of 2.”). The
trial court agreed with the prosecution, see id. at 11-12, and sentenced
Appellant to 66 months – 12 years of imprisonment (applying a PRS of 2). Id.
Appellant timely filed a post-sentence motion on July 25, 2022.
Appellant claimed, inter alia, that the sentencing court erred in applying an
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5 The trial court granted Appellant’s pre-trial motion to sever the remaining
charges on November 5, 2021.
6 The PSI is not contained in the record.
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incorrect PRS. Post-sentence Motion, 7/25/22, ¶¶ 12-15. The trial court
denied Appellant’s post-sentence motion on August 8, 2022. Appellant filed a
timely appeal and complied with Pa.R.A.P. 1925(b).
Appellant presents four issues for review:
1. Did the trial court err in denying Appellant’s omnibus pre-trial
motion to suppress where Appellant was given multiple
commands by various officers over a period of more than forty
(40) minutes, where he was questioned repeatedly about a
firearm, where officers lied to him about having video and
scientific evidence of him with a firearm, and where not one of
the four officers read him warnings pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966)[?]
2. Did the trial court err in granting the Commonwealth’s “Motion
in Limine Requesting Pretrial Finding that N.J.S.A. 2C:12-
1b(5)(a) Agg Assault on Law Enforcement is an Equivalent
Crime to Aggravated Assault as Enumerated in 18 Pa.C.S.A. §
6105(b),” and denying Appellant’s subsequent motion to
reconsider where the New Jersey statute is broader both in
terms of mens rea and actus reus[?]
3. Did the Commonwealth fail to present sufficient evidence to
support a verdict of guilty of persons not to possess … firearms
…, 18 Pa.C.S. § 6105, where Appellant does not have a
disqualifying conviction, or where the Commonwealth failed to
prove beyond a reasonable doubt that Appellant was in
possession of a firearm[?]
4. Did the trial court abuse its discretion in sentencing Appellant
to sixty-six (66) months to twelve (12) years of incarceration
where it held his New Jersey conviction to be equivalent to
aggravated assault under 18 Pa.C.S. § 2702(a)(3), thereby
miscalculating his prior record score, and where the New Jersey
statute is broader both in terms of mens rea and actus reus[?]
Appellant’s Brief at 6-7 (some capitalization modified).
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Appellant first claims the trial court erred in denying his OPTM, where
police unlawfully subjected him “to a custodial interrogation without the
safeguards demanded by Miranda….” Id. at 19. According to Appellant:
[T]hree police cars responded [on May 22, 2020, and Appellant]
was [] confronted by two officers—one of which [sic] dwarfed him
in height and apparent muscle mass[; Appellant] was not put in
restraints, and he was frisked. The officers … grilled Appellant for
over forty minutes about the location of the “pistola.” The officers
[] blatantly lied about being in possession of fingerprint evidence
that linked [Appellant] to the crime. And the officers [] blatantly
lied about being in possession of video footage that showed
[Appellant] with a firearm. Looking at all of these circumstances,
it is clear that no reasonable person would have felt free to leave
at that point; therefore, Appellant was subject to a custodial
interrogation, necessitating the warnings prescribed by Miranda,
protections that not one of the four officers provided him.
Id. at 21.
The Commonwealth counters:
[T]he basis for the traffic stop was for an investigative purpose
and not to take the Appellant into custody. This is especially
evident since Appellant was not taken into custody at the
completion of the stop[,] even after he admitted to possessing
and using the firearm. Furthermore, the conditions of the stop
were not so coercive that the officers significantly restricted or
curtailed Appellant’s freedom of movement. … [T]he
conversations between Appellant and law enforcement remained
calm, conversational, and respectful at all times throughout the
stop. Furthermore, the officers did not brandish any weapons[.]
… Most notably, Appellant was not restrained in any manner
during the traffic stop. … The entirety of the traffic stop was in a
public location.
Commonwealth Brief at 15 (break omitted).
We apply the following standard in reviewing the denial of a motion to
suppress:
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[W]e must determine whether the factual findings are supported
by the record. When it is a defendant who appealed, we must
consider only the evidence of the prosecution and so much of the
evidence for the defense as, fairly read in the context of the record
as a whole, remains uncontradicted. Assuming that there is
support in the record, we are bound by the facts as are found and
we may reverse the suppression court only if the legal conclusions
drawn from those facts are in error.
Commonwealth v. Brame, 239 A.3d 1119, 1126 (Pa. Super. 2020) (citation
and brackets omitted). Our scope of review is limited to the record developed
at the suppression hearing, considering the evidence presented by the
Commonwealth as the prevailing party and any uncontradicted evidence
presented by Appellant. Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa.
2018).
This Court has explained:
Statements made during custodial interrogation are
presumptively involuntary, unless the accused is first advised of
Miranda rights. Custodial interrogation is questioning initiated
by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way. The Miranda safeguards come into play
whenever a person in custody is subjected to either express
questioning or its functional equivalent. Thus, interrogation
occurs where the police should know that their words or actions
are reasonably likely to elicit an incriminating response from the
suspect. In evaluating whether Miranda warnings were
necessary, a court must consider the totality of the circumstances.
Whether a person is in custody for Miranda
purposes depends on whether the person is physically denied of
his freedom of action in any significant way[,] or is placed in a
situation in which he reasonably believes that his freedom of
action or movement is restricted by the interrogation. Moreover,
the test for custodial interrogation does not depend upon the
subjective intent of the law enforcement officer interrogator.
Rather, the test focuses on whether the individual being
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interrogated reasonably believes his freedom of action is being
restricted.
Said another way, police detentions become custodial when,
under the totality of the circumstances, the conditions and/or
duration of the detention become so coercive as to constitute the
functional equivalent of arrest. Thus, the ultimate inquiry for
determining whether an individual is in custody for Miranda
purposes is whether there was a formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest.
Commonwealth v. Gonzalez, 979 A.2d 879, 887-88 (Pa. Super. 2009)
(citations, ellipses, brackets, and quotation marks omitted).
We have further stated:
The usual traffic stop constitutes an investigative rather than a
custodial detention, unless, under the totality of the
circumstances, the conditions and duration of the detention
become the functional equivalent of arrest. Since an ordinary
traffic stop is typically brief in duration and occurs in public view,
such a stop is not custodial for Miranda purposes.
Commonwealth v. Mannion, 725 A.2d 196, 202 (Pa. Super. 1999) (en
banc) (citations omitted). “An ordinary traffic stop becomes ‘custodial’ when
the stop involves coercive conditions, including, but not limited to, the suspect
being forced into a patrol car and transported from the scene or being
physically restrained.” Id. (citation omitted).
Here, the trial court rejected Appellant’s claim that police subjected him
to a custodial interrogation:
[Appellant] was not deprived of his freedom of movement in any
significant way. Therefore, [Appellant] was not in custody at the
time of questioning outside of Cholo’s…. Indeed, Officer Koblish
and Officer Hobson intermittently questioned [Appellant] about
the location of the firearm that Mr. Herrera had alleged that
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[Appellant] discharged the previous day. There were no
restraints utilized and there was no show, threat, or use of
force. [Appellant] was not transported to a different location
against his will. While [Appellant] was in investigative detention
at the time of the questioning, [he] was not in custody.
Consequently, Miranda warnings were not required to be
provided to [Appellant].
Next, this court must determine whether the confession was
voluntary. In determining the voluntariness of a confession, the
trial court must consider and evaluate the totality of the
circumstances surrounding the confession. This standard has
been applied regardless of the custodial nature of the
interrogation. Commonwealth v. Johnson, 727 A.2d 1089,
1099 (Pa. 1999). When evaluating the totality of the
circumstances, the factors to be reviewed include the following:
The duration, and the methods of interrogation; the
conditions of detention, the manifest attitude of the
police toward the defendant, the defendant’s physical
and psychological state and all other conditions present
which may serve to drain one’s power of resistance to
suggestion and undermine his self-determination.
Commonwealth v. Hunt, 398 A.2d 690, 692 (Pa. Super. 1979).
See also Commonwealth v. Perez, 845 A.2d 779, 787 (Pa.
2004). The burden rests with the Commonwealth to show the
voluntariness of a confession by a preponderance of the evidence.
Commonwealth v. Moore, 311 A.2d 620[, 622] (Pa. 1973). The
voluntariness of such a confession may be based solely on the
credible testimony of the interrogating officer. Commonwealth
v. Cornish, 370 A.2d 291[, 297-98] (Pa. 1977). Furthermore, it
is exclusively within the province of the trial court to determine
the credibility of the witnesses and the weight to be accorded to
their testimony. Commonwealth v. Fitzpatrick, 666 A.2d 323,
325 (Pa. Super. 1995)….
[] Officer Koblish and Officer Hobson spoke with [Appellant]
in a calm and conversational tone. The questions posed by the
officers were aimed at learning the location of the firearm in order
to protect the community. No threats were issued by the officers
and none of the officers displayed or brandished their firearm.
[Appellant] was not handcuffed, shackled, tethered, or otherwise
restrained during this questioning. Instead, [Appellant] was
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casually leaning against the exterior wall of Cholo’s …, smoking a
cigarette. While [Appellant] had difficulty communicating with the
officers in English, his own friend, Mr. Garcia[,] aided in
interpreting until Officer Hobson obtained an interpreter
who was utilized via speaker phone. The record is void of any
coercive tactics employed by the officers to force [Appellant] into
a confession or to undermine his self-determination. Based on the
foregoing, [Appellant’s] statements were voluntarily, knowingly,
and intelligently made to Officer Koblish and Officer Hobson.
Trial Court Opinion, 5/28/21, at 9-11 (emphasis added; citations and some
capitalization modified). The trial court’s reasoning is supported by the record
and the law; it did not abuse its discretion in denying Appellant’s OPTM. See
id.; see also Mannion, supra. Appellant’s first issue fails.
Appellant next claims the trial court improperly granted the
Commonwealth’s October 29, 2021, motion in limine, because Appellant’s
“New Jersey conviction for aggravated assault is equivalent to 18 Pa.C.S.A. §
2701 (simple assault),” rather than 18 Pa.C.S.A. § 2702 (aggravated assault).
Appellant’s Brief at 23 (some capitalization modified). According to Appellant,
“the New Jersey statute is far broader” than Section 2702, “both in terms of
mens rea and actus reus.” Id. at 24.
When reviewing a trial court’s ruling on a motion in limine, this Court
applies an abuse of discretion standard of review. Commonwealth v.
Harrington, 262 A.3d 639, 646 (Pa. Super. 2021). “An abuse of discretion
will not be found based on a mere error of judgment, but rather exists where
the court has reached a conclusion which overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the result of
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partiality, prejudice, bias or ill-will.” Id. (citation omitted). Moreover, to the
extent that Appellant’s claim “presents a question of statutory construction,
our standard of review is de novo and the scope of our review is plenary.”
Commonwealth v. Vandyke, 157 A.3d 535, 538 (Pa. Super. 2017).
This Court has explained:
[W]hen determining the Pennsylvania equivalent statute for a
prior, out-of-state conviction …, courts must identify the elements
of the foreign conviction and on that basis alone, identify the
Pennsylvania statute that “is substantially identical in nature and
definition” to the out-of-state offense. [Commonwealth v.]
Bolden, 532 A.2d [1172,] 1176 [(Pa. Super. 1987)]. Courts are
not tasked with ascertaining the statute under which the
defendant would have been convicted if he or she had committed
the out-of-state crime in Pennsylvania. Rather, we must compare
“the elements of the foreign offense in terms of classification of
the conduct proscribed, its definition of the offense, and the
requirements for culpability” to determine the Pennsylvania
equivalent offense. [Commonwealth v.] Northrip, 985 A.2d
[734,] 740 [(Pa. 2009) (citation omitted).]
Commonwealth v. Spenny, 128 A.3d 234, 250 (Pa. Super. 2015) (footnote
omitted); see also Commonwealth v. Robertson, 722 A.2d 1047, 1049
(Pa. 1999) (when evaluating whether offenses are equivalent, courts should
compare the requisite elements of the respective crimes, including the actus
reus and the mens rea). “With respect to the underlying policy of the statutes,
… analysis of policy considerations is appropriate, though not controlling.”
Northrip, 985 A.2d at 740.
Instantly, the trial court found:
the elements of … the New Jersey statute and [Section
2702(a)(3)] are substantially identical to each other, as are the
mens rea and the actus reus which form the basis for liability.
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Moreover, the public policy behind these two [] statutes are
substantially identical, as both of these statutes promote the
safety and well-being of police officers. …
Trial Court Order, 11/15/21, n.1.
Moreover, the trial court stated at sentencing:
I have reviewed the elements of [both the New Jersey
statute and Section 2702(a)(3), and] the conduct prohibited by
these offenses and the overall public policy behind both of these
offenses.
They are substantially identical both in mens rea and actus
reus, and the policy behind both of these is to promote the safety
and wellbeing of police officers. And, so, I do believe that they
are the equivalent offense.
N.T., 7/15/22, at 11.
The trial court’s reasoning and ruling is supported by our review of the
record, and the law belies Appellant’s claim that the trial court erred or abused
its discretion.
In his third issue, Appellant argues his conviction of persons not to
possess firearms is not supported by sufficient evidence. See Appellant’s Brief
at 24-25. When reviewing a sufficiency challenge,
we evaluate the record in the light most favorable to the
Commonwealth as verdict winner, giving it the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt. 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. Additionally, the Commonwealth may
sustain its burden solely by means of circumstantial evidence.
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Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super. 2022) (citations
and quotations omitted). “Finally, the finder of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.” Commonwealth v. Smith, 206
A.3d 551, 557 (Pa. Super. 2019) (citation omitted).
The Crimes Code defines persons not to possess firearms, in pertinent
part, as follows:
(a) Offense defined.
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or
obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
***
(b) Enumerated offenses. The following offenses shall apply to
subsection (a):
***
Section 2702 (relating to aggravated assault).
18 Pa.C.S.A. § 6105(a)(1) & (b) (emphasis added). Possession can be
established “by proving actual possession, constructive possession, or joint
constructive possession.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa.
Super. 2018) (citation omitted).
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According to Appellant, “the Commonwealth did not, and cannot, prove
that Appellant has been convicted of an enumerated offense” in Section
6105(b). Appellant’s Brief at 25. Appellant claims,
the Commonwealth also failed to prove beyond a reasonable
doubt that he ever possessed a firearm. In the light most
favorable to the Commonwealth, the evidence merely shows that
Appellant at one time possessed a firearm through which one of
the live rounds on scene[,] as well as a casing found at
[Appellant’s] home[,] were cycled. It is mere speculation that he
possessed a firearm when not a single person saw him with a gun,
nor was one ever located.
Id.
Contrary to Appellant, the Commonwealth claims it presented sufficient
evidence to sustain Appellant’s conviction of persons not to possess firearms:
Appellant admitted that he possessed a black handgun and
that he had disposed of the firearm by throwing it off the
Freemansburg Bridge into the river following the shooting.
However, this was not the only evidence of Appellant’s possession
that was presented by the Commonwealth.
The Commonwealth also presented a firearm and toolmark
expert who indicated one [] of the undischarged cartridges found
at the scene, the discharged 9 mm Luger cartridge found in the
master bedroom of the Appellant’s residence, and the
undischarged 9 mm Luger cartridge found in the master bedroom
of the Appellant’s residence, all cycled through the same firearm.
Furthermore, the Commonwealth also presented evidence
of the Appellant discussing his possession of the firearm with a
female associate [in a recorded prison call,] and directing her to
not give the firearm to anyone else because [it] belong[ed] to him.
Appellant’s statements in this phone call not only evidenced his
prior possession of the firearm but his future intent to possess the
firearm.
Commonwealth Brief at 23 (italics in original). We agree.
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The trial court thoroughly explained its rejection of Appellant’s
sufficiency challenge in its August 8th, 2022 opinion. See Trial Court Opinion,
8/8/22, at 3-11. In sum, the court recounted the facts set forth above and
concluded:
Viewing all the evidence and all reasonable inferences
arising therefrom in the light most favorable to the
Commonwealth, it is clear that the evidence was sufficient to
enable a finder of fact to conclude that the elements of … person
not to possess a firearm were established beyond a reasonable
doubt. Indeed, at the conclusion of the jury trial, the jury had no
doubt that [Appellant] had been convicted of an enumerated
offense, i.e., aggravated assault on law enforcement, and he had
both the intent and power to control the firearm.
Id. at 10-11 (some capitalization modified); see also id. at 3-10 (facts).
Our review discloses record and legal support for the trial court’s
reasoning. Indeed, Appellant concedes he “possessed a firearm through
which one of the live rounds [found] on scene[,] as well as a casing found at
his home[,] were cycled.” Appellant’s Brief at 25. Appellant was prohibited
from possessing a firearm and had a prior conviction for a crime enumerated
under Section 6105(b). Accordingly, we affirm based on the trial court’s
reasoning. See Trial Court Opinion, 8/8/22, at 3-11; see also, e.g.,
Hewlett, 189 A.3d at 1009 (upholding defendant’s conviction for persons not
to possess firearms, where defendant fled police on foot following a high-
speed vehicle chase; police recovered a firearm on the street in an area where
police saw defendant hiding; defendant admitted to possessing a firearm in a
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recorded prison phone call; and the parties stipulated at trial that defendant
had a prior robbery conviction and was prohibited from possessing firearms).
In Appellant’s final issue, he claims the trial court erred in applying an
incorrect PRS of 2 at sentencing, when Appellant’s PRS should have been 0.
Appellant’s Brief at 25-28.
A claim that the court applied an incorrect PRS implicates the
discretionary aspects of sentencing. See Spenny, 128 A.3d at 241. Such
challenges “are not subject to our review as a matter of right.” Id. Rather,
where, as here, the appellant preserved his sentencing challenge in a timely
post-sentence motion, he must (1) include in the appellate brief a Pa.R.A.P.
2119(f) concise statement of the reasons relied upon for allowance of appeal
of; and (2) show that there is a substantial question that the sentence imposed
is not appropriate under the Sentencing Code. Commonwealth v.
Summers, 245 A.3d 686, 691 (Pa. Super. 2021).
Instantly, Appellant’s brief includes a Rule 2119(f) statement, see
Appellant’s Brief at 25-26, and his claims present a substantial question. See
Spenny, 128 A.3d at 241 (citing Commonwealth v. Johnson, 758 A.2d
1214, 1216 (Pa. Super. 2000)). Thus, we turn to the merits of Appellant’s
issue, which we “review for an abuse of discretion.” Spenny, 128 A.3d at
241.
With respect to a defendant’s out-of-state convictions and application of
a PRS, the sentencing guidelines provide: “An out-of-state … conviction or
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adjudication of delinquency is scored as a conviction for the current equivalent
Pennsylvania offense.” 204 Pa. Code § 303.8(f)(1). Alternatively, “[w]hen
there is no current equivalent Pennsylvania offense, determine the current
equivalent Pennsylvania grade of the offense based on the maximum sentence
permitted, and then apply § 303.8(d)(2).” Id.
According to Appellant,
the elements of the New Jersey statute precisely match up with
those of Pennsylvania’s simple assault statute, but it should be
further noted that the maximum term of imprisonment for the
New Jersey statute is 5 years, which under 204 Pa. Code §
303.8(f)(3)[,] would also be equivalent to a misdemeanor for prior
record score purposes. See N.J.S.A. § 2C:12- 1B, and N.J.S.A. §
2C:43-6A(3). In either of these cases, then, Appellant’s prior
record score should be a zero.
Appellant’s Brief at 27-28 (some capitalization modified).
We have already determined that the trial court properly rejected
Appellant’s argument that the New Jersey statute is not equivalent to Section
2702(a)(3). Thus, there is no merit to Appellant’s instant claim that
sentencing court improperly applied the New Jersey conviction and a PRS of
2. See Trial Court Opinion, 8/8/22, at 14 (“[Appellant’s PRS was] properly
calculated to be a 2. As such, the standard range of the sentencing guidelines
is forty-eight (48) to sixty-six (66) months. This [c]ourt imposed a minimum
sentence within the standard range of the sentencing guidelines and the
maximum sentence was set at the statutory maximum.”); Commonwealth
v. Snyder, 289 A.3d 1121, 1127 (Pa. Super. 2023) (stating sentencing
guidelines are “purely advisory in nature,” and a “sentencing court is
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permitted to deviate from the sentencing guidelines” where it places “on the
record its reasons for the deviation.” (citations omitted)). Accordingly,
Appellant’s final issue challenging his sentence fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2023
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