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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DUSTIN L. STARK, : No. 48 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, September 8, 2016,
in the Court of Common Pleas of Elk County
Criminal Division at No. CP-24-CR-0000351-2015
BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 22, 2017
Dustin L. Stark appeals from the September 8, 2016 judgment of
sentence after his conviction for the offense of persons not to possess, use,
manufacture, control, sell, or transfer firearms.1 The Court of Common
Pleas of Elk County sentenced him to a term of 30 to 60 months’
incarceration. George N. Daghir (“Attorney Daghir”), appellant’s counsel,
has filed a petition to withdraw, alleging that the appeal is frivolous,
accompanied by an Anders brief.2 We grant counsel’s withdrawal petition
and affirm the judgment of sentence.
1
18 Pa.C.S.A. § 6105(a)(1).
2
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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The record reflects that between September 25, 2015 and October 16,
2015, appellant traded a firearm that belonged to his stepfather,
Michael Feldbauer (“Mr. Feldbauer”), to a friend of his, Anthony Rossino
(“Rossino”), in exchange for some electronic devices. On January 28, 2016,
appellant moved to suppress his written confession on the basis that when
he confessed he was under the influence of unknown controlled substances
such that his confession was not voluntarily, knowingly, and intelligently
made. After a hearing on April 13, 2016, the trial court, by order and
opinion entered April 21, 2016, denied the motion. The trial court made the
following relevant findings of fact:
1. In the course of conducting an investigation
into the alleged theft of a firearm, Officer John
Gangloff of the Ridgway Borough Police
Department, an officer with 26 years total
experience including 18 years with the
Borough of Ridgway, identified [appellant] as a
suspect.
2. Officer Gangloff asked [appellant] to meet with
him at the Ridgway Borough Police Department
and [appellant] agreed, arriving in the early
evening hours of October 15, 2015, with his
mother, Kathy Feldbauer, and [Mr. Feldbauer],
who was the alleged victim of the firearm
theft.
3. After approximately 30 minutes of questioning
[appellant], Officer Gangloff requested that
[appellant] provide a voluntary written
statement and presented [appellant] with the
standard statement form utilized by the
Ridgway Police Department (Commonwealth
Exhibit 1).
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4. Officer Gangloff read the preprinted portion of
the voluntary statement form to [appellant],
including what constituted Miranda [v.
Arizona, 384 U.S. 436 (1966)] warnings.
Officer Gangloff also included his name and
badge number on the form and ultimately
signed the voluntary statement at the end as
the person who took the statement.
5. [Appellant] otherwise completed the voluntary
statement, including the insertion of the date
the statement was taken of October 21, 2015,
the time of the statement, 6:41 p.m., and the
place where the statement was taken. He then
completed an eleven-line narrative in his own
handwriting which related to the firearm
investigation, including items received by him
in the trade of a firearm to [Rossino].
6. While [appellant] was providing the written
statement, his mother and stepfather were
with him. After being present at the police
station for approximately 45 minutes to an
hour, Officer Gangloff took [appellant] to
[appellant’s] residence at 252 Euclid Avenue in
Ridgway in order to allow [appellant] to
retrieve the items that he had received from
the trade of the firearm.
7. [Appellant] went into his house and a short
time later provided Officer Gangloff with an
i-Phone 5, a pink tablet and a blue Straight
Talk phone, all of which had been identified
with specific particularity in [appellant’s]
written statement.
8. At no time during Officer Gangloff’s interaction
with [appellant] on October 21, 2015, did
[appellant] indicate that he was under the
influence of any alcohol or controlled or
counterfeit substance nor did he indicate that
he was impaired in any way. Furthermore, he
did not reference having taken any prescription
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medications prior to his interaction with
Officer Gangloff.
9. By virtue of his extensive experience as a
police officer, Officer Gangloff has had many
interactions with individuals who have been
under the influence and detected none of the
objective indicators in [appellant’s] demeanor
or physical manifestations. [Appellant] did not
have bloodshot or glassy eyes, he presented
no slurred or incoherent speech, his actions
were not sluggish, and Officer Gangloff
detected no odor of any alcoholic beverage. To
the contrary, [appellant] properly answered all
of Officer Gangloff’s questions and provided a
legible and coherent written statement.
10. Another indicator of [appellant’s] capacity on
October 21, 2015, is that he had the ability to
describe in detail the items received from
[Rossino] and then located those items in a
short period of time at his residence, following
which he delivered them to Officer Gangloff.
11. [Appellant’s] testimony regarding his condition
on October 21, 2015, was not credible,
including his recitation that he did not recall
being at the Ridgway Borough Police
Department whatsoever, that he did not
recognize his voluntary written statement of
October 21, 2015, admitted as Commonwealth
Exhibit 1, and did not recall having written the
statement.
12. [Appellant’s] contention that his capacity was
impaired by virtue of his having sometime in
the afternoon of October 21, 2015, two Busch
Lite beers, a 5 mg Xanax, and some
completely unknown and speculative substance
ingested through a Vape-pen or pipe, which
purportedly resulted in his becoming physically
ill was not supported by any competent or
corroborated evidence and is entirely infirm as
an attempt to demonstrate that he did not
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have the capacity to have provided a knowing
and voluntary statement to Officer Gangloff.
13. At all times relevant hereto, [appellant] had
sufficient capacity and the written statement
presented to Officer Gangloff was made
knowingly, voluntarily, and intelligently by
[appellant].
Findings, Memorandum of Law, and Conclusions of Law, 4/21/16 at 1-3.
At trial, the parties stipulated that appellant was a person not allowed
to possess firearms. Rossino testified regarding the trade he made for the
firearm. Officer John Gangloff (“Officer Gangloff”) of the Ridgway Police
Department testified regarding his investigation, his contact with appellant,
and appellant’s statement which was admitted into evidence. Appellant’s
mother, Kathy Feldbauer (“Feldbauer”), testified on appellant’s behalf that
he intended to trade a bicycle for the electronic items, but Officer Gangloff
told him that Rossino had provided a statement that appellant traded a gun
for the items so appellant should just go along with that. (Notes of
testimony, 6/24/16 at 66-67.) On cross-examination, Feldbauer admitted
that she told appellant “to write down the truth” in his statement. (Id. at
69.)
Appellant elected not to testify. After the trial court charged the jury,
the trial court asked counsel whether there were any exceptions to the
charge or any additional charge or any additional items. (Id. at 83.) At
sidebar, Attorney Daghir stated:
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Judge, I did not hear the Court instruct on the
[appellant] not testifying and them not being . . . .
However, it’s – at this late point right now I do not
want the Court to make that instruction. And my
basis for that is because now I’m concerned that it
really would highlight it. I’ve discussed it with my
client, and he’s agreeable to not –
Id. at 83. Consequently, no instruction was given at that time.
While the jury deliberated, it asked that appellant’s statement be read
to it, and the trial court denied the request:
Ladies and gentlemen of the jury, we’ve come to
side-bar and we’ve met on this before and had an
instruction that I didn’t read to you that the
defendant has an absolute right not to testify in a
case. I said it earlier when I gave you your earlier
instructions, that he comes into this courtroom
cloaked in a – with the presumption of innocence.
And the fact that he hasn’t testified cannot be used
against him because he has an absolute right to not
testify in a case.
And counsel and I have met on this issue and
met again just now at the bench, and I believe that
I’m not allowed to read that statement to you at this
time. I’m very specifically by the rules not allowed
to give it to you to take out of the courtroom
because it’s in effect giving you a transcript of
something that happened earlier. So it’s your
recollection – you have to rely on your recollection
[of] what he said in the statement that was
presented to you in the courtroom.
Id. at 86-87.
The jury found appellant guilty of the firearms charge. On
September 8, 2016, the sentencing court, though a different judge than the
one who conducted the trial, imposed the sentence set forth above. The
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trial court noted that neither party objected to the fact that a different judge
handled sentencing. (Notes of testimony, 9/8/16 at 2-4.)
On September 14, 2016, appellant filed post-sentence motions and
moved for a new trial based on the trial court’s failure to charge the jury
regarding no adverse inference to be drawn from appellant’s failure to testify
at trial. Following oral argument on December 2, 2016, the trial court
denied the motion for a new trial by order and memorandum opinion dated
December 23, 2016. On January 5, 2017, appellant appealed to this court.
On January 13, 2017, Attorney Daghir filed a Pa.R.A.P. 1925(c)(4)
statement in lieu of a statement of errors complained of on appeal and
stated that no errors had been raised because Attorney Daghir intended to
withdraw as counsel.
Attorney Daghir raises just one issue for this court’s review: “Whether
the appeal is frivolous such that counsel’s petition to withdraw should be
granted?” (Appellant’s brief at 3.)
On March 1, 2017, Attorney Daghir filed in this court a petition to
withdraw as counsel and an Anders brief, wherein Attorney Daghir states
that there are no non-frivolous issues preserved for our review on appeal.
A request by appointed counsel to withdraw
pursuant to Anders and Santiago gives rise to
certain requirements and obligations, for both
appointed counsel and this Court. Commonwealth
v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
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These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to be
wholly frivolous. Counsel
must also file an Anders brief
setting forth issues that might
arguably support the appeal
along with any other issues
necessary for the effective
appellate presentation
thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to retain
new counsel, proceed pro se
or raise additional points
worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
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. . . must: (1) provide a
summary of the procedural
history and facts, with
citations to the record;
(2) refer to anything in the
record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s
conclusion that the appeal is
frivolous; and (4) state
counsel’s reasons for
concluding that the appeal is
frivolous. Counsel should
articulate the relevant facts of
record, controlling case law,
and/or statutes on point that
have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Daghir’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant; advised him of his right to retain new counsel,
proceed pro se, and/or raise any additional points that he deems worthy of
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this court’s attention; and attached to the Anders petition a copy of the
letter sent to appellant as required under Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels,
999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.”). As Attorney Daghir has
complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders.
Once counsel has met his obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to the merits of appellant’s appeal.
Initially, this court will address the possible issue raised by
Attorney Daghir of whether the trial court erred when it failed to give the
jury instruction not to take an adverse inference regarding appellant’s failure
to testify. Attorney Daghir called the trial court’s failure to issue the charge
to the trial court’s attention but did not object and, in fact, stated that he did
not want the charge issued at that time. This court has held that no part of
a jury charge may be assigned as error unless a specific objection is lodged
prior to the jury’s deliberations. Commonwealth v. West, 937 A.2d 516
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(Pa.Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2009). As appellant
did not object to the failure to charge the jury with this instruction, he
cannot raise this issue on appeal. Additionally, when the jury requested that
appellant’s statement be read to it, the trial court declined the request and,
at that time, did explain that the jury is not permitted to make an adverse
inference based on appellant’s failure to testify.
Attorney Daghir also presents a possible issue for appeal that the
judge who presided at the trial did not sentence appellant. The Honorable
Michael E. Dunlavey, Senior Judge Specially Presiding, conducted appellant’s
trial. The Honorable Richard A. Masson, President Judge, sentenced
appellant.
Rule 700(a) of the Pennsylvania Rules of Criminal Procedure,
Pa.R.Crim.P. 700(a), provides that absent extraordinary circumstances, the
judge who presides at trial shall impose sentence. In Commonwealth v.
McNeal, 120 A.3d 313 (Pa.Super. 2015), this court applied
Pa.Crim.P. 700(a) in a probation revocation case and determined that absent
either extraordinary circumstances or the consent of the parties, the judge
who conducted a trial or received a plea of guilty shall be the judge to
impose sentence. Here, at sentencing, Attorney Daghir stated that he had
consulted with appellant and “had no objection to some judge other than
Judge Dunlavey doing the sentencing.” (Notes of testimony, 9/8/16 at 3.)
Because appellant consented to a different judge sentencing him than the
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one who presided at trial, we agree with Attorney Daghir that the issue is
wholly frivolous and without merit.
The third issue Attorney Daghir raises as a possible issue is that the
trial court erred when it denied appellant’s motion to suppress the statement
appellant made to the Ridgway Police Department. In the suppression
motion, appellant argued that his constitutional rights under both the
Pennsylvania and United States Constitutions and Miranda were violated
when the police obtained incriminating oral and written statements from him
on October 21, 2015, when he was so intoxicated as to lack the mental
capacity necessary to render a voluntary, knowing, and intelligent
statement.
Following a hearing in which Officer Gangloff, appellant, and Feldbauer
testified, the trial court denied the suppression motion.
Our standard of review for challenges to the denial of a suppression
motion is as follows:
[We are] 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, we are bound by these 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
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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 our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted). Further, “[i]t is
for the suppression court as the trier of fact, rather than the reviewing court,
to determine credibility.” In Interest of Parks, 536 A.2d 440, 443
(Pa.Super. 1988).
Here, the trial court found credible the testimony of Officer Gangloff
that Officer Gangloff read appellant his Miranda rights from the preprinted
portion of the voluntary statement form. (Notes of testimony, 4/13/16 at
8-11.) The trial court also found credible Officer Gangloff’s testimony that
appellant did not indicate to Officer Gangloff on October 21, 2015, that he
was under the influence of any alcohol, controlled or counterfeit substance,
or was impaired in any way. (Id. at 11.) Officer Gangloff also reported that
appellant did not refer to having taken any prescription medications prior to
meeting with Officer Gangloff. (Id. at 12.) The trial court also credited
Officer Gangloff’s extensive experience as a police officer with interactions
with those under the influence of drugs or alcohol when he reported that
appellant did not possess any objective indicators of intoxication.
The trial court further rejected appellant’s testimony that he did not
recall being at the police station on October 21, 2015, did not recognize his
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written statement, and did not recall having written the statement. (Id. at
20-21.) The trial court further rejected appellant’s contention that he lacked
capacity to make the statement due to his ingestion of a combination of
alcohol and drugs.
The trial court is the fact-finder in the suppression hearing. Parks.
The record supports the trial court’s factual findings. There is no credible
support in the record for appellant’s contention that he suffered a
deprivation of his constitutional rights because he lacked capacity to make a
knowing, voluntary, and intelligent statement regarding his possession of a
firearm. A review of the record supports the trial court’s factual findings
such that an appeal based on this issue would be frivolous.
Additionally, our independent review of the entire record has not
disclosed any potentially non-frivolous issues. Consequently, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/17
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