Com. v. Jennings, K. ( 2017 )

J-S38012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH JENNINGS, :
:
Appellant : No. 3790 EDA 2016
Appeal from the Judgment of Sentence August 25, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002518-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 24, 2017
Appellant, Kenneth Jennings, appeals from the judgment of sentence
entered in the Chester County Court of Common Pleas, following his
convictions of possession of a firearm with altered manufacturer’s number,
firearms not to be carried without a license, persons not to possess firearms,
possession of drug paraphernalia, and possession of a small amount of
marijuana.1 We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
While on patrol on June 21, 2013, Detective Shannon Miller heard several
gunshots and responded to the scene. At the scene, Detective Miller
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1
18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1) 6105(a)(1), 35 P.S. §§ 780-
113(a)(32), and (a)(31), respectively.
___________________________
*Former Justice specially assigned to the Superior Court.
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observed Appellant run across the street, briefly stop behind bushes, and
then walk away from the area. Detective Miller radioed a description of
Appellant to responding officers, and Corporal Jeffrey Ingemie subsequently
stopped Appellant. Corporal Ingemie placed Appellant in handcuffs and
recovered $154.00 in U.S. currency and a marijuana blunt from Appellant’s
person. Meanwhile, Detective Miller searched the bushes where Appellant
had briefly stopped. The search revealed $317.00 in U.S. currency, three
small baggies of marijuana, and a .32 Walther handgun with an obliterated
serial number. Police arrested and transported Appellant to the police
station.
At the police station, Appellant expressed interest in speaking with
Detective Miller about the incident. When Detective Miller arrived, Appellant
spontaneously told Detective Miller he had been running away from the
shooter and had not fired the gun. Detective Miller stopped Appellant and
told him that she would give him a chance to tell his side of the story.
Detective Miller returned to Appellant’s holding cell some time later and told
Appellant she planned to release him that night. Detective Miller also told
Appellant she was ready to hear Appellant’s side of the story if he was still
interested in telling it. While walking to the interview room, Appellant
expressed interest in working as a confidential informant (“CI”). Detective
Miller informed Appellant she could pass his information along to the High
Intensity Drug Trafficking Area (“HIDTA”) group, but could not promise any
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favorable treatment with his current arrest. Once in the interview room,
Detective Miller read Appellant his Miranda2 rights, which Appellant waived.
During the subsequently recorded interview, Appellant admitted to
ownership and possession of the gun, drugs, and money found in the bushes
and on his person.
On September 8, 2015, the Commonwealth charged Appellant with
possession of a firearm with altered manufacturer’s number, firearms not to
be carried without a license, possessing instruments of crime (“PIC”),
possession of a controlled substance, possession of a small amount of
marijuana, possession of drug paraphernalia, and persons not to possess
firearms. Appellant filed an omnibus pre-trial motion on May 6, 2016, which
sought the suppression of his recorded confession. The court denied the
motion after a hearing on May 11, 2016. That same day, Appellant
proceeded to a jury trial on the possession of a firearm with altered
manufacturer’s number, firearms not to be carried without a license, PIC,
and possession of drug paraphernalia charges. After the conclusion of
testimony on May 13, 2016, the court granted Appellant’s motion for
judgment of acquittal as to Appellant’s PIC charge. The jury subsequently
convicted Appellant of the remaining offenses, and the court convicted
Appellant of possession of a small amount of marijuana. The court deferred
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2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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sentencing pending the preparation of a pre-sentence investigation (“PSI”)
report.
Appellant proceeded to a bench trial on the persons not to possess
firearms charge on June 10 and June 29, 2016. On June 30, 2016, the court
convicted Appellant of the persons not to possess firearms charge. On July
26, 2016, the court sentenced Appellant to a term of four and one-half (4½)
to ten (10) years’ imprisonment for the possession of a firearm with altered
manufacturer’s number conviction, a concurrent term of three (3) to ten
(10) years’ imprisonment for the firearms not to be carried without a license
conviction, a concurrent term of four (4) to twelve (12) months’
imprisonment for the possession of drug paraphernalia conviction, and a
concurrent term of one (1) to three (3) years’ imprisonment for the persons
not to possess firearms conviction, for an aggregate term of four and one-
half (4½) to ten (10) years’ imprisonment. Appellant timely filed a post-
sentence motion on August 5, 2016, which raised a challenge to the weight
of the evidence, sufficiency of the evidence, and the discretionary aspects of
Appellant’s sentence.
At a hearing on August 25, 2016, the court vacated Appellant’s
sentence for the firearms not to be carried without a license conviction and
resentenced Appellant to a concurrent term of three (3) to seven (7) years’
imprisonment for the conviction. Appellant’s aggregate sentence remained
four and one-half (4½) to ten (10) years’ imprisonment. The court also
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heard argument on Appellant’s post-sentence motion and took the matter
under advisement. On November 4, 2016, the court denied Appellant’s
post-sentence motion. Appellant timely filed a notice of appeal on December
1, 2016. On December 2, 2016, the court ordered Appellant to file a concise
statement of errors raised on appeal pursuant to Pa.R.A.P. 1925(b), and
Appellant’s counsel filed a statement of intent to file an Anders brief on
January 25, 2017. On March 20, 2017, counsel filed a petition to withdraw
as counsel and Anders brief in this Court.
As a preliminary matter, counsel seeks to withdraw her representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
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confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
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determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated February 8,
2017, attached to Petition for Leave to Withdraw as Counsel). In the
Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel’s argument refers to relevant law that might
arguably support Appellant’s issues. Counsel further states the reasons for
her conclusion that the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issues on Appellant’s behalf:
DID THE TRIAL COURT ERR IN FINDING THAT
APPELLANT’S WAIVER OF HIS MIRANDA RIGHTS WAS
NOT IMPERMISSIBLY INDUCED AND FURTHER THAT
APPELLANT’S STATEMENT TO POLICE WAS GIVEN
KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY?
DID THE COURT ERR IN FINDING THAT THE WEIGHT OF
THE EVIDENCE WAS NOT CONTRARY TO THE JURY’S
FINDING THAT APPELLANT POSSESSED THE GUN
SUPPORTING NUMEROUS FIREARM CONVICTIONS
DESPITE APPELLANT’S DEFENSE OF NECESSITY?
(Anders Brief at 5).
In his first issue, Appellant argues Detective Miller coerced the waiver
of his Miranda rights by telling Appellant he would get off “scot-free” if he
confessed to possession of the gun for protection. Appellant claims
Detective Miller spoke to him about the incident while Appellant was in a
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holding cell at the police station without informing Appellant of his Miranda
rights. Appellant avers Detective Miller advised him to confess to possession
of the gun for protection to avoid facing charges. Appellant submits he
signed the waiver of his Miranda rights and gave a fabricated confession
only because he believed Detective Miller’s advice. Appellant concludes the
court erred when it denied his motion to suppress his confession because he
did not knowingly, voluntarily, and intelligently waive his Miranda rights,
and this Court should vacate his judgment of sentence. We disagree.
Our standard of review of the denial of a motion to suppress evidence
is as follows:
[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 [the] 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 [trial court
are] subject to plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),
appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).
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Statements made during custodial interrogation are presumptively
involuntary, unless the police first inform the accused of his Miranda rights.
Commonwealth v. DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001),
appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). 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.” Miranda, supra at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at
___. “[I]nterrogation includes express questioning as well as words or
actions on the part of police officers that they should have known were
reasonably likely to elicit an incriminating statement.” Commonwealth v.
Abdul-Salaam, 544 Pa. 514, 532, 678 A.2d 342, 351 (1996), cert. denied,
520 U.S. 1157, 117 S.Ct. 1337, 137 L.Ed.2d 496 (1997). “[T]he protective
provisions of Miranda prohibit the continued interrogation of an interviewee
in police custody once he…has invoked the right to remain silent and/or to
consult with an attorney.” Commonwealth v. Bess, 789 A.2d 757, 762
(Pa.Super. 2002).
Additionally, this Court has stated:
The determination [of] whether an accused has knowingly
and voluntarily waived his constitutional rights depends on
the facts of each particular case. These circumstances
include the background, experience, and conduct of the
accused. The [Commonwealth] has the burden to prove,
by a preponderance of the evidence, that the waiver was
the product of a free and deliberate choice rather than
intimidation, coercion, or deception and was made with a
full awareness both of the nature of the right being
abandoned and the consequences of the decision to
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abandon it. Only if the totality of the circumstances
surrounding the interrogation reveal both an uncoerced
choice and the requisite level of comprehension may a
court properly conclude that the constitutional rights to
counsel have been waived. With respect to constitutional
rights, courts should indulge every reasonable presumption
against waiver.
Commonwealth v. Cohen, 53 A.3d 882, 886-87 (Pa.Super. 2012) (internal
citations omitted).
Instantly, Detective Miller testified at the suppression hearing about
her interaction with Appellant at the police station. The testimony
established Appellant made spontaneous statements about the incident to
Detective Miller when she visited Appellant in the holding cell. Specifically,
Appellant told Detective Miller that someone else had been shooting at him,
and he did not fire the gun he had in his possession. Detective Miller
stopped Appellant from saying anything further, told Appellant she would
give him an opportunity to tell his side of the story, and then left to
investigate Appellant’s criminal history. Detective Miller returned to
Appellant’s holding cell some time later, told Appellant that she would
release him that night, and offered to listen to Appellant’s side of the story if
he was still interested in telling it. While walking to the interview room,
Appellant said he still wanted to tell his side of the story and asked Detective
Miller how he could help himself. Detective Miller informed Appellant she
would pass his information along to the HIDTA group for possible CI work
but could not promise any favorable treatment with his current arrest.
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Detective Miller then read Appellant his Miranda rights line by line.
Detective Miller stopped after each line and asked Appellant if he understood
the rights. Appellant stated he understood each right and executed a
written Miranda waiver form. Only after Appellant signed the waiver form
did Detective Miller proceed to question Appellant about the incident.
Appellant subsequently admitted to ownership and possession of the gun,
drugs, and money found in the bushes and on his person.
Appellant also provided testimony at the suppression hearing, in which
he denied Detective Miller’s version of events. Instead, Appellant claimed
Detective Miller questioned him at the scene of the incident and in the
holding cell, without advising Appellant of his Miranda rights. Appellant
also testified that Detective Miller told Appellant he would get off “scot-free”
if he gave a formal statement that he possessed the gun for self-protection.
Appellant said he believed Detective Miller, waived his Miranda rights, and
gave a fabricated confession because he was anxious. The trial court found
Detective Miller’s testimony more credible than Appellant’s testimony, and
denied Appellant’s suppression motion.
Under these circumstances, Detective Miller did not coerce Appellant’s
waiver of his Miranda rights. Appellant verbally acknowledged the waiver
of his Miranda rights and executed the Miranda waiver form after Detective
Miller read Appellant his rights line by line. Importantly, Appellant did not
state at any time that he did not understand the rights he was abandoning
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or the consequences of abandoning those rights. Further, Appellant did not
demonstrate any action or statement by Detective Miller, which induced the
waiver of his Miranda rights. Instead, Appellant merely stated he waived
his Miranda rights and gave a fabricated confession because he was
anxious. Thus, the Commonwealth established by a preponderance of the
evidence that Appellant knowingly, voluntarily, and intelligently waived his
Miranda rights; and the court properly denied Appellant’s motion to
suppress his confession. Accordingly, Appellant’s first issue on appeal
warrants no relief.
In his second issue, Appellant argues the verdict was against the
weight of the evidence in light of his necessity defense. Appellant claims he
came into possession of the firearm when he had an altercation with the
shooter. Appellant maintains he did not own the firearm and only took the
firearm from the shooter for Appellant’s own protection. Appellant avers the
jury erred when it disbelieved his version of events and convicted him of
various firearms offenses. Appellant concludes his convictions shock one’s
sense of justice, and this Court should remand for a new trial. We disagree.
The standard of review for a challenge to the weight of the evidence is
as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse [a] verdict if
it is so contrary to the evidence as to shock one’s sense of
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justice. Moreover, where the trial court has ruled on the
weight claim below, an appellate court’s role is not to
consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate
review is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted). “A trial court’s denial of a weight claim is the
least assailable of its rulings. Conflicts in the evidence and contradictions in
the testimony of any witnesses are for the fact finder to resolve.”
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012), appeal
denied, 620 Pa. 721, 69 A.3d 601 (2013) (internal citations omitted).
Further,
A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial
judge must do more than reassess the credibility of the
witnesses and allege that he would not have assented to
the verdict if he were a juror. Trial judges, in reviewing a
claim that the verdict is against the weight of the evidence
do not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to
ignore them or to give them equal weight with all the facts
is to deny justice.
Commonwealth v. Widmer, 560 Pa. 308, 319-20, 744 A.2d 745, 752
(2000) (internal citations omitted).
Instantly, Detective Shannon Miller testified for the Commonwealth at
trial. Detective Miller explained she observed Appellant, on the night of the
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incident, run across the street, stop briefly behind some bushes, and then
walk away from the scene. Detective Miller stated a search of the bushes
revealed $317.00 in U.S. currency, three small baggies of marijuana, and a
.32 Walther handgun with an obliterated serial number. The Commonwealth
also introduced at trial a video of Appellant’s interview with Detective Miller.
In the video, Appellant admitted ownership and possession of the handgun
for person use.
To rebut the Commonwealth’s evidence, Appellant testified on his own
behalf at trial. Appellant alleged he took the gun away from an unknown
male after a brief altercation. Appellant denied ownership of the gun and
claimed he discarded the gun behind the bushes because he was afraid for
his safety. Appellant insisted he fabricated his confession because he
believed it would prevent charges being filed against him.
The Commonwealth’s evidence as well as Appellant’s evidence
demonstrated that Appellant possessed the handgun on the night of the
incident. Importantly, the jury was free to believe all, part, or none of the
evidence presented at trial and to reject Appellant’s “necessity” defense.
See Champney, supra. The trial court determined the verdict was not
against the weight of the evidence. We see no abuse of discretion in the
court’s decision on Appellant’s weight claim, which therefore merits no relief
on appeal. Following our independent review of the record, we conclude the
appeal is frivolous. See Palm, supra. Accordingly, we affirm and grant
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counsel’s petition to withdraw.
Judgment of sentence affirmed; petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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