Com. v. White, D.

J-S50040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARNELL WHITE
Appellant No. 2957 EDA 2014
Appeal from the Judgment of Sentence July 8, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012882-2012
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 10, 2015
Appellant Darnell White appeals from the judgment of sentence
entered following his open guilty plea to firearms not to be carried without a
license1 and possession of firearms prohibited.2 After careful review, we
affirm.
We summarize the relevant facts and procedural history as follows.
On the afternoon of April 12, 2012, Appellant and his cohort, Hakeem
Burley, engaged in a gunfight with another individual, Shekinah Williams,
which resulted from a perceived insult uttered by Burley with respect to
Williams. After the insult, Williams produced a 9 mm handgun and fired
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1
18 Pa.C.S. § 6106(a)(1).
2
18 Pa.C.S. § 6105(a)(1).
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eleven (11) shots at Appellant and Burley. Appellant produced a 9 mm
handgun of his own and fired ten (10) shots at Williams. The firefight left
Burley with a bullet wound to the arm. Additionally, a bullet from Williams’
gun shot and killed Clarice Douglas, a 41-year-old innocent bystander.
The night of the gunfight, a confidential informant told police that
Appellant had been involved in the shooting. Later, at approximately 7:30
p.m. on May 9, 2012, police located Appellant and transported him to the
homicide unit at police headquarters for an interview. After waiving his
Miranda3 rights, Appellant spoke with police and ultimately remained in the
interview room that evening and throughout the following day. 4 At
approximately 7:00 p.m. on the evening of May 10, 2012, Appellant again
waived his Miranda rights and gave a statement wherein he admitted his
possession of the 9 mm gun and his involvement in the firefight, although he
explained he had not killed anyone. Police released Appellant after he
provided the statement.
Police arrested Appellant in October 2012 on gun charges stemming
from the firefight. On July 18, 2013, Appellant filed a motion seeking
suppression of his statements made to police on May 9-10, 2012, which he
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3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
4
Appellant was not handcuffed, and was allowed to sleep, eat, drink, and go
to the bathroom upon request.
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claimed were involuntary. The suppression court conducted a hearing and
denied Appellant’s motion on August 22, 2013.
On March 24, 2014, Appellant entered an open guilty plea to firearms
not to be carried without a license and possession of firearms prohibited
subject to an agreement between Appellant and the Commonwealth that
Appellant would be allowed to challenge the denial of his suppression motion
on direct appeal. On July 8, 2013, the trial court sentenced Appellant to
three (3) to six (6) years of incarceration on the firearms not to be carried
without a license conviction, followed by two (2) years of probation on the
possession of firearms prohibited conviction.
On July 16, 2014, Appellant filed a post-sentence motion for
reconsideration of sentence, which the trial court denied on October 2, 2014.
Appellant filed a notice of appeal on October 9, 2014. Appellant and the trial
court complied with Pa.R.A.P. 1925.5
Appellant raises the following issues for our review:
A. Did the suppression court improperly deny [Appellant’s]
motion to suppress his inculpatory statements where the
detectives unnecessarily delayed his arraignment following his
arrest to conduct unnecessary investigation and extended his
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5
The certified record contains two Pa.R.A.P. 1925(a) opinions: one filed by
the trial court judge on February 2, 2015 (“trial court 1925(a) opinion”), and
a second filed by the suppression court judge on March 16, 2015
(“suppression court 1925(a) opinion”) in response to the trial court’s
December 12, 2014 request that the suppression judge file a separate
Pa.R.A.P. 1925(a) opinion addressing the suppression motion, the hearing
on the motion, and the resulting order.
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detention for the sole purpose of obtaining incriminating
statements?
B. Did the suppression court improperly deny [Appellant’s]
motion to suppress his inculpatory statements where police
arrested him without a warrant and without probable cause, and
detained him in the homicide unit overnight?
Appellant’s Brief, pp. 2-3 (all capitals removed).
Both of Appellant’s claims concern alleged error regarding the
suppression court’s ruling. This Court’s well-settled standard of review of a
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 an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to []
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010) (internal citations
and quotation marks omitted).
Appellant first claims that improper police interrogation tactics,
specifically detaining him at the police station for over 24 hours without
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arrest, coerced him into confessing involuntarily. See Appellant’s Brief, pp.
13-27. He is incorrect.
When a court is called upon to determine whether a
confession is voluntary and, hence, admissible at trial, it
examines the totality of the circumstances surrounding the
confession to ascertain whether it is the product of an essentially
free and unconstrained choice by its maker. In making this
inquiry, a court is not concerned with the issue of whether the
substance of the confession is true. Rather, a court is
constrained to examine only whether an individual’s confession
was the product of coercion, duress, or the use of other
measures by interrogators deliberately calculated to overcome
his or her free will.
Commonwealth v. Smith, 85 A.3d 530, 537-38 (Pa.Super.2014). “By the
same token, the law does not require the coddling of those accused of crime.
One such need not be protected against his own innate desire to unburden
himself.” Commonwealth v. Templin, 795 A.2d 959, 966 (Pa.2002)
(quoting Commonwealth v. Graham, 182 A.2d 727, 730–31 (Pa.1962)).
As our Supreme Court has explained:
The mere fact that there is some passage of time between when
an accused is arrested and when he or she gives an inculpatory
statement does not constitute grounds for suppression of the
statement. Numerous factors should be considered under a
totality of the circumstances test to determine whether a
statement was freely and voluntarily made: the means and
duration of the interrogation, including whether questioning was
repeated, prolonged, or accompanied by physical abuse or
threats thereof; the length of the accused’s detention prior to
the confession; whether the accused was advised of his or her
constitutional rights; the attitude exhibited by the police during
the interrogation; the accused’s physical and psychological state,
including whether he or she was injured, ill, drugged, or
intoxicated; the conditions attendant to the detention, including
whether the accused was deprived of food, drink, sleep, or
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medical attention; the age, education, and intelligence of the
accused; the experience of the accused with law enforcement
and the criminal justice system; and any other factors which
might serve to drain one’s powers of resistance to suggestion
and coercion.
Commonwealth v. Martin, 101 A.3d 706, 724-25 (Pa.2014), cert. denied
sub nom. Martin v. Pennsylvania, 136 S. Ct. 201 (2015) (citing
Commonwealth v. Perez, 845 A.2d 779, 785-787 (Pa.2004)) (internal
citations omitted).
“The Commonwealth has the burden of proving by a preponderance of
the evidence that the defendant confessed voluntarily.” Commonwealth v.
Harrell, 65 A.3d 420, 434 (Pa.Super.2013), appeal denied, 101 A.3d 785
(Pa.2014). “The determination of whether a confession is voluntary is a
conclusion of law and, as such, is subject to plenary review.”
Commonwealth v. Roberts, 969 A.2d 594, 599 (Pa.Super.2009).
The suppression court summarized the suppression hearing evidence
as follows:
The Commonwealth called as their only witness Detective
Philip Nordo[6] who testified regarding his investigation of the
homicide of Clarice Douglass which occurred on April 20, 2012.
Detective Nordo interviewed [Appellant] based upon information
that he had received that [Appellant] had been involved in a
gunfight which led to the victim’s death. He was placed in an
interview room at approximately 7:30 p.m. on May 9, 2012.
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6
The suppression court “determined Detective Nordo’s testimony to be
credible and consistent throughout both direct and cross-examination and no
bias or prejudice was elicited which would bring any aspect of his testimony
into doubt.” Suppression Court Opinion, p. 5.
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According to Detective Nordo, he advised [Appellant] of his
Miranda rights and began interviewing him within an hour of his
arrival. [Appellant] volunteered information about his
whereabouts at the time of the incident and the names of others
involved. Detective Nordo then worked on an unrelated
homicide investigation and also attempted to verify the
information that [Appellant] had initially provided, none of which
he was able to substantiate.
Detective Nordo returned his attention back to [Appellant]
at approximately 11:30 p.m. At that time, [Appellant] provided
no further information to either Det. Nordo or his partner, other
than stating he felt nervous. [Appellant] then stayed the night
in the interview room. [Appellant] was not handcuffed and the
door was not locked.
Detective Nordo and his partner, Detective Jenkins, after
further investigating the homicide returned the next day to meet
with [Appellant]. They again gave [Appellant] his Miranda
rights and resumed the interview process with him in the early
evening. At this point, [Appellant] voluntarily provided further
information which resulted in a 15-page formal statement signed
by [Appellant] on May 10, 2012. The statement was provided to
the officers after [Appellant] had spent approximately 24 hours
in police custody.
In his statement, [Appellant] acknowledged that he had
been given and understood his constitutional rights. He also
acknowledged that he had been given food, the ability to use the
bathroom and had been permitted to sleep while there.
[Appellant] also acknowledged that he has not been promised
anything in return for or coerced by the officers in giving his
statement. The detectives did inform him that if he possessed a
gun, he could be charged for that crime. In regard to
[Appellant’s] unsubstantiated statements from May 9, 2012,
[Appellant] admitted to Det. Nordo that he had not wanted to be
involved and was nervous.
Once the interview was completed and the statement
finalized, [Appellant] was given the opportunity to review his
answers, which he did, and he then signed every page of the
statement. [Appellant] also signed a non-consent form for
having his interview video or audio recorded.
On cross-examination, Detective Nordo testified that the
decision to hold a witness in custody who was initially untruthful
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is made by the investigator, in this case him, along with the
district attorney’s office while other investigation is performed in
order to pinpoint [a] defendant’s whereabouts and actions at the
time of the crime. This particular investigation took time due to
the detectives’ heavy workload involving multiple crimes during
that time frame.
From the time of the crime occurring and the interviewing
of witnesses, the detectives had received information about
[Appellant’s] involvement in the shooting, his name, and the
house where he had been hiding at the time. Detective Nordo
confirmed that there were three witnesses that provided
information to the police regarding [Appellant]. Two witnesses,
Michelle Richardson and April Brown, had provided written
statements and the third witness was a confidential informant.
Ms. Richardson and Ms. Brown both identified [Appellant] in a
photograph. Further, Ms. Brown stated that [Appellant] was an
associate of another victim of the shooting, however, neither
woman placed [Appellant] at the scene of the crime.
The other shooting victim, Hakeem Burley, also gave a
statement to police relating that he had possessed the .45
caliber handgun that was found at the scene, but he did not fire
it. This statement was corroborated by a ballistics report which
determined that the 21 shell casings found at the scene were
from two different 9 millimeter firearms, not a .45 caliber. It
was the confidential informant however, that had provided
information to Officer Lai, who later, along with his partner,
Officer Dougherty, found [Appellant] and brought him to the
station for questioning.
Detective Nordo testified that [Appellant] was not
handcuffed at any point during the interview process. While he
was in the interview room for the approximately 24 hour period,
he was free to exit and use the bathroom, but did have to ask
permission of the officers in order to escort him to and from.
Detective Nordo did take possession of [Appellant’s] cellphone as
it was not permitted in the interview room.
[Appellant] had not been placed under arrest on May 9,
2012 or even on the following day, as the detectives did not
have sufficient evidence to charge him with homicide, despite
him having implicated himself in the shooting. By 11:30 p.m. on
May 9, 2012, when the detectives went home, [Appellant] had
not been given any food or water that that point, as Detective
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Nordo testified it would have been recorded if [Appellant] had
asked for food or water. A chronology of the detention was not
kept and it was not requested by the district attorney, as
[Appellant] was only held for 24 hours which does not require a
chronology. When Detective Nordo spoke again with [Appellant]
on the evening of May 10, 2012, at no point did he indicate that
[he] had been deprived of food or bathroom access. [Appellant]
was also fed at that time.
Suppression Court Opinion, pp. 2-5 (record citations and footnote omitted).
Based on this evidence, the suppression court concluded that, under
these circumstances “[t]he interrogation in and of itself was not overbearing,
relentless or in any way coercive.” Suppression Court Opinion, p. 7.
Further, the suppression court elaborated:
The evidence fails to show any other factors, aside from
time, for this [c]ourt to consider in order to conclude, by a
preponderance of the evidence, that the statement was
involuntarily coerced. [Appellant] was aware he was being
questioned in regard to a shooting. He was twice given his
Miranda warnings, which he expressly agreed to waive. His
statement cannot be said to have been anything other than
knowing, intelligent, and voluntary.
Suppression Court Opinion, pp. 7-8.
Our review of the record confirms the evidence supports the
suppression court’s factual findings. Further, the suppression court’s legal
conclusions drawn from those facts are correct. Accordingly, Appellant’s first
claim fails.
In his second claim, Appellant forwards the alternative argument that
his detention by police amounted to an arrest affected without warrant or
probable cause, and was therefore illegal. See Appellant’s Brief, pp. 27-35.
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Appellant argues that his statements should have been suppressed as fruit
of the poisonous tree of this illegal arrest. Id. Appellant did not previously
raise this claim in his motion to suppress or at the suppression hearing.
Accordingly, it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”);
Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa.2010) (“[The
Pennsylvania Supreme] Court has consistently held that an appellate court
cannot reverse a trial court judgment on a basis that was not properly raised
and preserved by the parties.”).7
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2015
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7
Appellant also failed to raise this alternative suppression theory in his
Pa.R.A.P. 1925(b) statement. See Appellant’s Pa.R.A.P. 1925(b) Statement;
see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.2005) (issues
not raised in 1925(b) Statements will be deemed waived).
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