Com. v. Wicker, A. ( 2015 )

J-S46007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ATIBA WICKER
Appellant No. 819 EDA 2014
Appeal from the Judgment of Sentence December 18, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002845-2012
CP-51-CR-0002843-2012
CP-51-CR-0002844-2012
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 13, 2015
Appellant, Atiba Wicker, appeals from the December 18, 2013
aggregate judgment of sentence of 31 to 72 years’ imprisonment, imposed
after he was found guilty of three counts of aggravated assault, and one
count each of possession of a firearm prohibited and recklessly endangering
another person (REAP).1 After careful review, we affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
Philadelphia Police Officer Tamike Reid testified
that, at approximately 7:45 p.m. on October 2,
2011, she was driving to work at the 18th Police
District in her personal vehicle when she observed
____________________________________________
1
18 Pa.C.S.A. §§ 2702(a), 6105(a) and 2705, respectively.
J-S46007-15
four males standing outside La Pearl Bar, located at
54th Street and Haverford Avenue in the City of
Philadelphia. As she approached, she observed a
taller male, she described as appearing to be the
“bouncer or security” strike another shorter male.
She pulled to the corner and observed the shorter
male get into a black Mercedes and drive away. She
explained she didn’t take further action because she
was not in full uniform and had no radio to call for
backup.
Later, while on duty, she heard a citywide high
priority radio call announcing, “Cars stand by, 19th
District, 54th and Haverford, report of a shooting at
La Pearl Lounge.” She immediately drove to La
Pearl, approximately 10 to 12 blocks away, and
reported her earlier observations to the assigned
detective and later in the evening gave him a
detailed statement of her observations.
Philadelphia Police Detective Robert Daly
testified that on October 2, 2011, he was assigned to
the Southwest Detectives Division of the Philadelphia
Police Department located at 55th and Pine Streets in
the City of Philadelphia, when at approximately 8:30
p.m. he was assigned as the lead investigator to
investigate the shooting at La Pearl. On arriving
there at approximately 9:00 p.m. he immediately
noticed fired cartridge casings on the ground and
bullet holes in the front door. Detective Daly,
testified that he interviewed and took photographs of
Mr. Alvin Chandler who had been injured by flying
glass. He testified that Mr. Chandler told him he was
at the door at the time of the shooting but was
unable to give him a description of the shooter.
After completing his initial investigation at La
Pearl, Detective Daly proceeded to the Hospital of
the University of Pennsylvania to interview the other
two victims of the shooting, Ms. Keisha Beckles and
Mr. James Rice. He described Ms. Beckles injuries as
consisting of a large gash across her upper lip and
out the side from where she got shot in the face.
After interviewing Ms. Beckles, he next interviewed
-2-
J-S46007-15
Mr. Rice in his room. He described Mr. Rice’s room
as having an open door and filled with his friends.
He took a brief statement from Mr. Rice in which he
told Detective Daly that he had seen the shooter but
gave no description.
Detective Daly returned to the Hospital the
next day with a photo array he had compiled from
information gathered as a result of his investigation.
This array did not contain a photograph of
[Appellant]. Although Mr. Rice was unable to
identify anyone from the array, he again told
Detective Daly that, “Yeah, I’ll be able to I.D. him.”
As the investigation continued, Detective Daly
maintained contact with Mr. Rice, who refused to
come into the offices of Southwest Detectives,
because “he was very apprehensive about coming
in.” On October 25, 2011 Detective Daly eventually
got Mr. Rice to meet with him at Central Detective
Division because it has an underground entrance
that can’t be seen from the street. At this meeting,
using the description of the shooter given to him by
Mr. Rice, Detective Daly created a large computer
generated photo array. Mr. Rice identified the
photograph of one individual, not [Appellant], as
looking like the shooter but clear that this person
was not the shooter.
Detective Daly, testified that on November 6,
2011, he received a phone call from Mr. Rice saying,
“the boy that shot me just called me” from a blocked
caller I.D. number. On November 10, 2011, after
spending several days tracing the call back through
Mr. Rice’s phone carrier, Detective Daly recovered
the blocked number and called it, reaching Ms.
Jacquetta Rouse. She told him that on November 6
she had been on a date with [Appellant], whom she
just knew as “T,” but was unaware of any phone call
made to Mr. Rice. She also gave Detective Daly
[Appellant]’s phone number. Based on the
information he received from Ms. Rouse, Detective
Daly, was able to identify [Appellant] and prepared a
photo array containing [Appellant]’s photo. On
-3-
J-S46007-15
November 11, 2011, he displayed the array to Mr.
Rice, who immediately identified [Appellant] as the
shooter.
Mr. James Rice testified that on, Sunday,
October 2, 2011, he was employed at La Pearl Bar
located at 54th Street and Haverford Avenue in the
City of Philadelphia. On that particular evening he
was providing security at the front door.
He testified that between approximately 7:30
to 7:45 p.m. [Appellant] threw a drink on one of the
dancers in the establishment. On seeing this, he
walked over to [Appellant] saying to him, “Come on
outside. Let me talk to you for a minute.” After
going outside [Appellant] appeared to be receptive
to Mr. Rice’s concerns when another patron, Julius
Faison, whom he knows as “Drew”, came outside.
Faison engaged [Appellant] in an argument over the
drink having spilled on him as well. The verbal
argument soon led to an exchange of blows between
the two of them. [Appellant] then went to his car
and drove off.
Mr. Rice testified that approximately thirty to
forty minutes later [Appellant] returned with a gun
and asked Mr. Rice, “Where did that guy go?” Being
preoccupied, he responded, “He’s not here. Give me
a second.” When others noticed the gun, Mr. Rice
got everyone inside the bar and closed the door
behind him. Seconds after closing the door, Mr. Rice
heard gunshots and was struck in the back by a
bullet. He also testified that two other people were
injured as a result of the shooting.
Mr. Rice was then driven to the hospital in a
police car for treatment. After receiving treatment,
Mr. Rice testified he gave a statement to the
investigating detective.
When asked on direct examination why the
statement he made to Detective Daly in the hospital
differed from his testimony at trial he responded,
because “there was probably people inside the
-4-
J-S46007-15
hospital with me, and I’m not going to be talking to
the police.” When asked why he would not meet
with Detective Daly in his offices at 55th and Pine
Streets, Mr. Rice replied, “It’s my neighborhood. I
wasn’t going. I would have never went there.” He
also testified that he had pointedly refused Detective
Daly’s request to meet him in his office.
Mr. Rice testified that on November 6, 2011,
he received a phone call at approximately 2:30 p.m.
from a blocked phone number. The first voice he
heard was a female voice followed by a male voice
who identified himself “T” or “D,” “The person that
shot you” who then said, “Don’t worry about it I’ll cut
you a check.”
Mr. Rice immediately called Detective Daly to
report this call. Subsequently, on November 11,
2011, he met with Detective Daly who showed him a
photo array from which he identified [Appellant]’s
picture.
Ms. Jacquetta Rouse testified that shortly after
being on a date with [Appellant] she received a
phone call from detectives inquiring about
[Appellant] and his use of her cell phone. She told
them that at the time she only knew [Appellant] as
“T” and gave them his phone number. She further
testified that she was not aware that [Appellant] had
used her phone nor did she know Mr. Rice. She also
testified that [Appellant] later admitted to her that
he had used her phone because he had something
he wanted to straighten out.
Ms. Nicole Cooper testified that [Appellant] has
been her boyfriend since 2009. She also testified
that on the evening of October 2, 2011, she
encountered [Appellant] at La Pearl and got into a
heated argument, each upset that the other was
there. After the argument [Appellant] walked away
and she didn’t see him until later that night. When
asked about the shooting she testified, “something
did happen while I was there because I ran out.” “I
didn’t see anyone get shot.”
-5-
J-S46007-15
FBI Special Agent William Shute, a seventeen
year veteran of the FBI, currently assigned to the
FBI’s Cellular Analysis Survey Team, was qualified,
without objection, as an expert in the field of
historical cell site analysis. Analyzing [Appellant]’s
cell phone usage records, Agent Shute testified that,
on October 2, 2011: 1) at 6:41 p.m., [Appellant]’s
cell phone was located in the vicinity of 11th and
Spring Garden Streets in the City of Philadelphia,
east of La Pearl; 2) at 7:07 p.m., usage of the phone
began to move; 3) at 7:29 p.m., in the immediate
vicinity of La Pearl; 4) at 7:46 p.m. the phone is on
the move away from La Pearl heading in the westerly
direction; 5) at 8:20 p.m, in the vicinity of Cobbs
Creek Parkway and Walnut Street, west of La Pearl;
6) at 8:27 p.m., in the vicinity of 63rd Street and
Lebanon Avenue, west and north of La Pearl; and 7)
at 8:40 p.m., in the vicinity of Fairmount Park, east
of La Pearl. Agent Shute also testified that there
were no calls logged on [Appellant]’s phone between
8:27 to 8:40 …. He further testified that the route
between the cell sites of these two calls, would have
taken [Appellant] through three cell towers, one of
which is located in the vicinity of La Pearl. The
usage records indicate that [Appellant] travelled
directly back to his starting point at 11th and Girard
from the location of the 8:40 call.
Trial Court Opinion, 9/16/14, at 5-11 (some internal quotation marks and
citations omitted).
On November 15, 2011, the Commonwealth filed three informations,
charging Appellant with one count each of aggravated assault and
possession of a firearms prohibited at CP-51-CR-2843-2012; one count each
of aggravated assault and REAP at docket number CP-51-CR-2844-2012;
and one count of aggravated assault at docket number CP-51-CR-2845-
2012. Appellant proceeded to a jury trial on February 20, 2013, but the trial
-6-
J-S46007-15
court declared a mistrial on February 25, 2013. Appellant proceeded to a
second jury trial on May 22, 2013. On June 3, 2013, at the conclusion of the
second trial, the jury found Appellant guilty of all charges. On December 18,
2013, the trial court imposed an aggregate sentence of 31 to 72 years’
imprisonment. Appellant filed a timely post-sentence motion on December
26, 2013, which the trial court denied on March 7, 2014. On March 18,
2014, Appellant filed a timely notice of appeal.2
On appeal, Appellant raises four issues for our review.
I. Did the trial court err in allowing the testimony
of Agent Kelly Ashton as to Appellant’s
statements made to her while he was in
custody and after his indictment?
II. Did the [trial] court err in not allowing Juror
#8 to submit his question to the [trial] court in
writing so it could either be asked or
rephrased, or denied?
III. Should this matter be remanded for a hearing
on whether there was probable cause to
execute a search warrant for Appellant’s cell
usage records?
IV. Did the [trial] court err when it failed to give a
[Commonwealth v. Kloiber, 106 A.2d 820
(Pa. 1954)] charge to the jury on identification
and omitted any discussion of identification[?]
Appellant’s Brief at 17.
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-7-
J-S46007-15
Appellant’s first issue pertains to the denial of his motion to suppress.
We begin by noting our well-settled standard of review.
[I]n addressing a challenge to a trial court’s denial of
a suppression motion [we are] limited to determining
whether the factual findings are supported by the
record and whether the legal conclusions drawn from
those facts are correct. Since the Commonwealth
prevailed in 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 record supports the
factual findings of the trial court, we are bound by
those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)
(some brackets and citation omitted).
Here, Appellant argues that his statements concerning his being in a
bar and that the police were looking for him, made to Agent Kelly Ashton of
the Pennsylvania Board of Probation and Parole, after the conclusion of a
parole hearing, violated his Sixth Amendment rights under the Counsel
Clause pursuant to the Supreme Court’s decision in Massiah v. United
States, 377 U.S. 201 (1964). Appellant’s Brief at 21. In Massiah, the
defendant had already been indicted on several drug offenses and was free
on bail pending trial. Id. at 201. Unbeknownst to Massiah, his co-defendant
had decided to cooperate with the federal authorities and the government
installed a radio transmitter, similar to what is colloquially known as a “wire”
today, in the co-defendant’s car. Id. at 202-203. Massiah unknowingly
-8-
J-S46007-15
made several incriminating statements to his co-defendant which the federal
agents listened to via the radio transmitter. Id. at 203.
The Supreme Court held that the admission of these inculpatory
statements violated Massiah’s Sixth Amendment rights under the Counsel
Clause.
We hold that the petitioner was denied the basic
protections of that guarantee when there was used
against him at his trial evidence of his own
incriminating words, which federal agents had
deliberately elicited from him after he had been
indicted and in the absence of his counsel. It is true
that in the Spano case the defendant was
interrogated in a police station, while here the
damaging testimony was elicited from the defendant
without his knowledge while he was free on bail.
But, as Judge Hays pointed out in his dissent in the
Court of Appeals, “if such a rule is to have any
efficacy it must apply to indirect and surreptitious
interrogations as well as those conducted in the
jailhouse. In this case, Massiah was more seriously
imposed upon […] because he did not even know
that he was under interrogation by a government
agent.”
Id. at 206.
In the case sub judice, Appellant argues that Massiah requires the
suppression of Appellant’s statements to Agent Ashton. However, here,
Agent Ashton testified that Appellant himself initiated the conversation by
waving her over to him. N.T., 1/11/13, at 11-12.3 Although Appellant’s
____________________________________________
3
We note the cover page on the transcript erroneously lists the date of the
testimony as January 11, 2012.
-9-
J-S46007-15
Sixth Amendment right to counsel had attached, Massiah only applies to
statements elicited by the Commonwealth or its agents through some
affirmative action. Massiah, supra. Our Supreme Court has recognized
this distinction. See Commonwealth v. Mayhue, 639 A.2d 421, 436 (Pa.
1994) (finding there was no violation of Massiah where Mayhue initated
conversations with a jailhouse informant). Based on these considerations,
we conclude the trial court properly denied Appellant’s motion to suppress
on this basis. See Washington, supra.
In Appellant’s second issue, he avers that the trial court “erred in not
allowing juror number 8 to submit his question to the [trial] court so that it
could be asked[.]” Appellant’s Brief at 24. However, before we may review
this issue, we must determine whether it has been properly preserved for
our review, as the trial court concludes Appellant waived this issue by not
objecting during the trial.
It is axiomatic that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our
Supreme Court has repeatedly emphasized the importance of issue
preservation.
Issue preservation is foundational to proper
appellate review. Our rules of appellate procedure
mandate that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). By requiring that an issue
be considered waived if raised for the first time on
appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
- 10 -
J-S46007-15
consider the issue. This jurisprudential mandate is
also grounded upon the principle that a trial court,
like an administrative agency, must be given the
opportunity to correct its errors as early as possible.
Related thereto, we have explained in detail the
importance of this preservation requirement as it
advances the orderly and efficient use of our judicial
resources. Finally, concepts of fairness and expense
to the parties are implicated as well.
In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations
omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.
2013) (citation omitted).
Instantly, the following exchange occurred at the end of redirect
examination of a defense witness.
Juror No. 8: I have a question.
The Court: We don’t do questions. But the court
officer will speak to you.
Do you have any recross?
[Commonwealth]: No.
[Defense Counsel]: I apologize there was one
other thing.
The Court: Okay.
…
The Court: In some jurisdictions, not in
Pennsylvania, in some jurisdictions jurors can ask
questions.
N.T., 5/30/13, at 81-82. We have reviewed the transcript and are unable to
locate any place in the record where Appellant made a contemporaneous
- 11 -
J-S46007-15
objection to the trial court’s answer to the juror’s request. As a result, we
deem this claim waived on appeal.4
We elect to address Appellant’s final two issues together. In his third
issue, Appellant asks that this Court remand this case for a new suppression
hearing as to whether a search warrant obtained for Appellant’s cell phone
records was supported by probable cause. Appellant’s Brief at 36. In his
fourth issue, Appellant avers the trial court erred in not giving a Kloiber
instruction to the jury. Id. at 38, 44.
By its plain text, Rule 1925(b) requires that statements “identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). The
Rule also requires that “[e]ach error identified in the Statement will be
deemed to include every subsidiary issue contained therein which was raised
in the trial court ….” Id. at 1925(b)(4)(v). Finally, any issues not raised in
accordance with Rule 1925(b)(4) will be deemed waived. Id. at
1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a bright-
line rule.
Our jurisprudence is clear and well-settled, and
firmly establishes that: Rule 1925(b) sets out a
simple bright-line rule, which obligates an appellant
to file and serve a Rule 1925(b) statement, when so
____________________________________________
4
As this issue is waived, we express no opinion on the larger question of
whether, and under what circumstances, juror questioning should be
permissible in Pennsylvania.
- 12 -
J-S46007-15
ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack
the authority to countenance deviations from the
Rule’s terms; the Rule’s provisions are not subject to
ad hoc exceptions or selective enforcement;
appellants and their counsel are responsible for
complying with the Rule’s requirements; Rule 1925
violations may be raised by the appellate court sua
sponte, and the Rule applies notwithstanding an
appellee’s request not to enforce it; and, if Rule
1925 is not clear as to what is required of an
appellant, on-the-record actions taken by the
appellant aimed at compliance may satisfy the Rule.
We yet again repeat the principle first stated in
[Commonwealth v.] Lord, [719 A.2d 306 (Pa.
1998)] that must be applied here: “[I]n order to
preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court
orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.” [Id.] at 309.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).
In this case, Appellant’s Rule 1925(b) statement fails to list any claim
addressing a Kloiber instruction, or any suppression issue apart from the
statements made to Agent Ashton. See Appellant’s Rule 1925(b)
Statement, 4/14/14, at 1-2. As a result, Appellant may not raise these
issues for the first time on appeal. Therefore, we deem these two claims
waived.5
____________________________________________
5
For the same reason, Appellant’s separate application for remand to litigate
a suppression motion on the basis of Riley v. California, 134 S. Ct. 2473
(2014), is denied.
- 13 -
J-S46007-15
Based on the foregoing, we conclude all of Appellant’s issues on appeal
are either waived or devoid of merit.6 Accordingly, the trial court’s
December 18, 2013 judgment of sentence is affirmed.
Judgment of sentence affirmed. Application for remand denied.
Application for extension of time to file brief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2015
____________________________________________
6
The Commonwealth’s application for an extension of time to file its brief is
denied.
- 14 -