Com. v. Scott, O.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
OBATAIYE KAREE SCOTT, JR., : No. 1595 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, September 27, 2013,
in the Court of Common Pleas of Fayette County
Criminal Division at Nos. 454 OF 2013, CP-26-CR-0000454-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014
This is an appeal from the judgment of sentence entered on
September 27, 2013, in the Court of Common Pleas of Fayette County.
Following a jury trial, appellant was convicted of burglary, theft by unlawful
taking, and criminal mischief. Appellant was sentenced on the burglary
conviction to three to six years’ incarceration. No further penalty was
imposed on the remaining convictions. We affirm.
We adopt the facts as recounted by the trial court:
On October 16, 2012, the victim,
Tiffany Woods, was residing with her 7-year-old
daughter in a two story home at 63 Steel Street,
Republic, Fayette County, Pennsylvania. On
October 16, 2012, after completing her shift at
Teletech, her place of employment in Uniontown,
Pa., Tiffany picked up her daughter at her sister’s
residence and returned to the home at 63 Steel
Street, Republic. Following the evening meal[,] she
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watched TV, got her daughter ready for bed and
retired for the night to her second floor bedroom at
approximately 11:15 P.M. (N.T. 10, 11)
The following morning, October 17, 2012,
Tiffany awoke before 6:30 A.M. to get ready for
work. When she descended the stairs from the
second floor, she saw that her dining room, living
room and kitchen lights were turned on when she
had turned them off the night before. She also
observed that drawers were open and that papers
were strewn across the floor. She entered the
kitchen and observed that her purses had been
emptied out. She went back into the living room and
discovered that two sets of car keys and house keys
which she kept on a table were missing.
Tiffany Woods then ran outside to see if her car had
been stolen. Before reentering her home[,] she
noticed that her garbage can was propped against
the dining room window and the screen on the
window had been cut. One set of keys to her house
and car were on a smiley face keychain, and the
other set were on a yellow Polo keychain which also
contained her daughter’s picture. (N.T. 11)
On October 17, 2012, around 3:00 A.M.,
Sergeant Norman Howard of the Redstone Township
Police Department had occasion to enter a residence
at 7 Johnson Street, Republic, Pa. The residence at
7 Johnson Street is located one street down from
Steel Street and a distance of approximately
200 yards from Tiffany Woods’ residence at 62 Steel
Street, Republic. Upon entering the residence at
7 Johnson Street, Republic, Officer Howard observed
the defendant and noticed that defendant had two
sets of keys in his hand. Officer Howard observed
the defendant throw the keys onto the floor in front
of him. (N.T. 17, 18, 19) Howard retrieved the two
sets of keys and entered them into evidence at the
Redstone Township Police Station.
Following consultation with the Pennsylvania
State Police officer who had investigated the burglary
at 63 Steel Street, Officer Troy Rice of the Redstone
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Township Police Department met with Tiffany Woods
at the Redstone Township Police Station. Woods
identified the two sets of keys as being the keys
stolen from her house during the night of
October 16-17, 2012. Officer Rice then observed as
Tiffany Woods utilized the keys to start her white
Sunfire vehicle. (N.T. 13, 18, 19, 24)
On October 30, 2012, the defendant met with
Trooper Matthew Gavrish, a criminal investigator,
with the Belle Vernon Barracks of the Pennsylvania
State Police. Gavrish informed the defendant of his
Miranda rights following which defendant waived his
right to remain silent and provided Trooper Gavrish
with a statement. (N.T. 30, 31) Defendant admitted
to his involvement in the [b]urglary of
Tiffany Woods’ residence at 63 Steel Street,
Republic. Defendant indicated that he stood on the
road as a lookout while Amnie stood on a trash can.
He heard him cutting something and then Amnie
went through the window. According to the
defendant[,] “all we got was two sets of car keys.”
Defendant stated that the police came to
Robert Savage’s house and took possession of the
sets of keys. (N.T. 33)
Trial court opinion, 1/8/14 at 2-4.
On October 17, 2012, appellant was charged with burglary, theft by
unlawful taking, receiving stolen property and criminal mischief.1 A
preliminary hearing took place on March 11, 2013, and all charges were
bound over to the court of common pleas. Following a jury trial on
September 4, 2013, appellant was found not guilty of receiving stolen
1
18 Pa.C.S.A. §§ 3502(A)(1), 3921(A), 3925(A) and 3304(A)(5),
respectively.
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property but guilty of the remaining charges. Sentencing occurred on
September 27, 2013. This appeal followed.
Herein, appellant raises two issues:
I. Whether the statement of the Appellant should
have been suppressed since it was not entered
into voluntarily, knowingly, and/or intelligently,
since the Appellant was under duress with
strong police influence and had been
interrogated for over an hour by the police?
II. Whether the Jury erred by finding the
Appellant guilty of the crimes charged,
specifically Burglary, Theft By Unlawful Taking,
and Receiving Stolen Property?
Appellant’s brief at 6.
Turning to appellant’s first issue, the trial court advises appellant did
not file a motion to suppress his statement in the present case. (See trial
court opinion, 1/8/14 at 11.) According to the trial court:
Defendant did file a motion to suppress his
statement made to the police in a companion case
filed at Fayette County Common Pleas Court
No. 1983 of 2012. In the companion case[,]
defendant was charged with Burglary and related
offenses relative to the residence of Joshua A.
Osborne located at 23 Rollie Street, Republic,
Pennsylvania. The break[-]in at the Osborne
residence occurred on October 10, 2012.
In his Omnibus Pretrial Motion filed at 1983 of
2012, defendant sought suppression of his
confessions contending that at the time [] the
statement was made to the police[,] defendant was
represented [by] Attorney Blaine Jones and that
Attorney Jones was not contacted about the police’s
intent to question him.
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A hearing on the omnibus motion was held
before the Honorable Nancy D. Vernon on
September 10, 2013. Attorney Rodney Blaine
Jones II was called and testified that he
represented the defendant on only two cases
involving victims, Robert Savage and
Joshua Osborne, and only up to the completion
of the preliminary hearing held October 29,
2012. According to Attorney Jones, he made it clear
to defendant and his mother that he was only
representing him for those two cases until the
preliminary hearing. He did not represent the
defendant for any proceedings beyond the
preliminary hearing. (O.P.T. 9-10-13, p. 4-5)
Trooper Matthew Gavrish testified that he went
to the Fayette County Jail on October 30, 2012, to
interview the defendant. (O.P.T. 9-10-13, p. 14)
Gavrish had been present at the preliminary hearing
held October 29, 2012 and was aware that
Attorney Jones’ representation of the defendant had
ceased with the completion of the preliminary
hearing.
Id. at 11-12 (emphasis added).
A motion to suppress evidence must be made pretrial, unless “the
opportunity did not previously exist, or the interests of justice otherwise
require.” Commonwealth v. Long, 753 A.2d 272, 279 (Pa.Super. 2000),
quoting Commonwealth v. Barnyak, 639 A.2d 40, 45 (Pa.Super. 1994),
appeal denied, 652 A.2d 1319 (Pa. 1994), cert. denied, 515 U.S. 1130
(1995). Based on the record, a pretrial motion to suppress was not filed in
the instant case involving Woods; hence, the issue is waived.
Even if this issue was not waived, there is no merit to appellant’s
argument. Appellant claims that the conduct of the police was so
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manipulative and coercive that but for that conduct, he would not have
confessed. An individual under police suspicion may waive his Miranda2
rights and agree to answer the questions or make a statement.
Commonwealth v. DeJesus, 787 A.2d 394, 402 (Pa. 2001), cert. denied,
537 U.S. 1028 (2002). These rights, however, must be knowingly,
voluntarily, and intelligently waived; that is, the waiver “must be the product
of a free and deliberate choice rather than intimidation, coercion, or
deception,” and “made with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon it.” Id.
The voluntariness of a confession is determined by the totality of the
circumstances. Commonwealth v. Templin, 795 A.2d 959, 964 (Pa.
2002). Specifically, to determine whether the defendant’s waiver was the
product of undue coercion, we consider the totality of circumstances, giving
special attention to the “duration and means of the interrogation; the
physical and psychological state of the accused; the conditions attendant to
the detention; the attitude of the interrogator; and any and all other factors
that could drain a person’s ability to withstand suggestion and coercion.”
Templin, 795 A.2d at 966. The question to determine voluntariness “is not
whether the defendant would have confessed without interrogation, but
whether the interrogation was so manipulative or coercive that it deprived
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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the defendant of his ability to make a free and unconstrained decision to
confess.” Id.
According to Trooper Gavrish, he first made contact with appellant at
1:15 p.m. on October 30, 2012, and he read appellant his Miranda rights.
(Notes of testimony, 9/4/13 at 30.) Appellant acknowledged the reading of
his Miranda rights by signing the waiver form. (Id. at 30-31.)
Trooper Gavrish testified that he then talked to appellant, and at 2:25 p.m.,
he informed appellant that he was going to be recorded. (Id. at 32.)
Trooper Gavrish proceeded to give the Miranda warnings again to appellant.
(Id.) Appellant once more acknowledged the Miranda warnings. (Id.) At
that point, appellant described what took place on the evening
Tiffany Woods’ home was broken into. (Id. at 32-33.) Trooper Gavrish
testified that no promises or threats were made during appellant’s
interrogation at the Fayette County Prison. (Id. at 35.)
Here, the fact that appellant was apprised of, and expressly waived,
his Miranda rights before questioning began is a consideration of
“primary importance” in our analysis of the voluntariness of both the verbal
and written confessions.
We observe that:
The fact that warnings were given is an important
factor in the direction of a voluntariness finding.
This fact is important in two respects. It bears on
the coerciveness of the circumstances, for it reveals
that the police were aware of the suspect’s rights
and presumably prepared to honor them. And . . . it
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bears upon the defendant’s susceptibility, for it
shows that the defendant was aware that he had a
right not to talk to the police.
Templin, 795 A.2d at 966.
Despite appellant’s argument that he did not confess of his own free
will, based on this record, we do not find that the conditions or duration of
the interrogation were so manipulative or coercive that appellant was
deprived of his ability to make a “free and unconstrained decision to
confess.” See Commonwealth v. Taylor, 431 A.2d 915, 918 (Pa. 1981)
(actual period of interrogation lasting slightly more than one hour did not
overwhelm defendant’s will). We also note that the police were under no
obligation to contact Attorney Jones when he no longer represented
appellant.
In his second issue, appellant claims the evidence was insufficient to
convict him of burglary, theft by unlawful taking, and criminal mischief.
When reviewing challenges to the sufficiency of
the evidence, we evaluate the record in the light
most favorable to the Commonwealth as the verdict
winner, giving the prosecution the benefit of all
reasonable inferences to be drawn from the
evidence. Commonwealth v. Duncan, 932 A.2d
226, 231 (Pa. Super. 2007) (citation omitted).
“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.” Id.
(quoting Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005), appeal denied, 585
Pa. 685, 887 A.2d 1239 (2005). However, the
Commonwealth need not establish guilt to a
mathematical certainty, and it may sustain its
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burden by means of wholly circumstantial evidence.
Id. Moreover, this Court may not substitute its
judgment for that of the factfinder, and where the
record contains support for the convictions, they
may not be disturbed. Id. Lastly, we note that the
finder of fact is free to believe some, all, or none of
the evidence presented. Commonwealth v.
Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).
Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa.Super. 2008),
appeal denied, 980 A.2d 111 (Pa. 2009).
Appellant’s sufficiency of the evidence argument fails to challenge any
specific element of the crimes for which he was convicted. Instead,
appellant’s argument centers on his confession, and challenges a credibility
determination made by the jury. Appellant contends that his confession
should have been suppressed, and without it, the jury would have had
reasonable doubt. (Appellant’s brief at 14.) We have already concluded
appellant voluntarily waived his Miranda rights and his confession was
properly admitted. The testimony, along with appellant’s statement,
established his guilt beyond a reasonable doubt.
Additionally, appellant contends “that he was in another person’s
residence, and that person could have had those keys.” (Appellant’s brief at
15.) That argument goes to credibility, and the jury obviously chose to
believe Officer Norman Howard who testified that he encountered appellant
at 3:00 a.m. on October 17, 2012, inside a residence at 7 Johnson Street
which was a couple hundred yards from Tiffany Woods’ residence. (Notes of
testimony, 9/4/13 at 17-20.) Officer Howard testified that appellant “had
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two sets of keys in his hand.” (Id. at 18.) When asked what appellant did
with the keys, the officer responded, “he kind of threw it on the ground in
front of him.” (Id.) The officer was asked what happened next, and he
responded, “[appellant] threw them on the floor, laid on top of them. After
[appellant] got up off the ground[,] I took possession of the keys.” (Id. at
22.) Those keys were later identified by Tiffany Woods as the keys taken
from her residence. (Id. at 13.)
The failure to identify which element of an offense was not proven
waives a sufficiency claim. Commonwealth v. Manley, 985 A.2d 256,
261-262 (Pa.Super. 2009), appeal denied, 996 A.2d 491 (Pa. 2010).
Accordingly, appellant’s argument that the evidence was insufficient is
waived. Moreover, our review of this matter indicates the evidence was
sufficient. Therefore, we will affirm appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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