Com. v. Arnao, P

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PAUL A. ARNAO :
:
Appellant : No. 839 EDA 2018
Appeal from the Judgment of Sentence October 4, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000330-2016
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: Filed: March 23, 2020
Paul A. Arnao appeals from the October 4, 2017 judgment of sentence
following his convictions for aggravated assault, simple assault, possession of
a firearm prohibited, possession with intent to deliver a controlled substance
(“PWID”), possession of an instrument of crime, and possession of a controlled
substance by a person not registered. After careful review, we affirm.
The trial court aptly summarized the factual history of this case:
Appellant was arrested in the aftermath of a 911 domestic
violence call on the morning of January 4, 2016, just after
midnight, to which Marcus Hook Police Officer Daniel Barnett
responded at the location of 9th and Green Street in Marcus Hook,
Delaware County, Pennsylvania. On arrival there, Officer Barnett
found the victim Darla Olson (the “victim”) hysterical (on the
porch of her mother’s house) with reddened horizontal
strangulation marks wrapped around her neck. When asked what
happened, the victim, over her crying and inability to speak after
several minutes, said her boyfriend, Appellant, wrapped a yellow
nylon rope around her neck and strangled her. Appellant lived in
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a second-floor apartment in a separate home approximately fifty
(50) feet from the victim’s mother’s home.
As to her physical appearance, Officer Barnett described long red
marks on the side of her neck approximately one (1) to two (2)
inches long. The marks appeared to Officer Barnett to be rope
burns. . . . The victim also reported to Officer Barnett that
Appellant is crazy, that he was probably watching from his
apartment as they spoke. She said Appellant had firearms and he
would shoot a police officer.
Officer Barnett was standing fifty (50) to seventy-five (75) feet
from Appellant’s apartment as he received this information from
the victim. As he and other officers approached Appellant’s
apartment which was accessible by a flight of metal stairs, Officer
Barnett did observe exterior surveillance cameras pointed at the
stairs and entrance.
....
As the officers approached the bottom of the staircase and
encountered the surveillance cameras, they reconsidered possibly
calling in a SWAT team to assist taking Appellant into custody but
the door to Appellant’s apartment swung open and he came
walking out. Appellant complied with instructions to come down
the stairs with his hands up to be taken into custody.
After Appellant was taken into custody, there was no discussion
or questioning and Appellant was not Mirandized[1] at that point.
As Appellant was taken into custody the apartment door remained
open. Officer Crouse of the Marcus Hook Police Department
escorted Appellant to a patrol car. Other officers conducted a
protective sweep of Appellant’s apartment.
Before entering the apartment, Officers Barnett, Hallman and
Donnelly remained on the landing outside the apartment and were
observing whatever they could before cautiously entering the
apartment. From his vantage point outside the apartment, Officer
Barnett testified he could plainly see a yellow rope consistent with
the one described by the victim as used in the attack to choke her
by Appellant.
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1 See Miranda v. Arizona, 384 U.S. 436 (1966).
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Officer Barnett also testified he plainly smelled burnt marijuana.
Officer Barnett testified the apartment was in disarray. He
testified there were stray bullets scattered all over. There was a
silver revolver hanging over the door in the living room and
bedroom. The only space that was checked was behind a closet
door. Thereafter, Officer Hallman remained stationed there at the
apartment while an application for a search warrant was to be
made by Officer Barnett.
Officer Barnett then confronted Appellant and told him he had two
options, that he could consent to the search or officers were going
to apply for a search warrant. Initially, Appellant refused to
consent to the search. Thereafter, as Appellant was placed in the
patrol car, he relented saying he didn’t want to give police a hard
time, and that he would consent to the search. At that point,
Appellant was taken to the police station (a 30-second ride) where
he was presented with the consent form to read and sign. . . .
Once the form was signed, Officer Crouse remained with the
defendant at the police station while Officer Barnett conducted the
search.
During the search, officers seized the following: yellow twine rope,
a silver revolver, a glass jar containing suspected marijuana, a
brown ceramic jar which contained 3 clear glassine bags, two had
a crystal-like substance that field-tested positive for
methamphetamine, one baggie contained a clear crystal residue,
a digital scale, four small notebooks with instructions on how to
make crystal meth, tally sheets, a black safe and a black satchel
containing a ski mask and gloves and an air soft rifle type gun,
numerous rounds of live ammunition, as well as Appellant’s
identification . . . and two tool boxes containing lock picking tool
sets.
Trial Court Opinion, 10/10/18, at 4-9 (cleaned up; internal citations omitted).
After a jury trial, Appellant was convicted of the aforementioned crimes
and sentenced to an aggregate term of imprisonment of thirty to sixty years.2
Appellant timely filed post-sentence motions, which were denied. Thereafter,
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2 Appellant was subject to third-strike sentencing. See 42 Pa.C.S. § 9714.
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Appellant filed a timely notice of appeal. The trial court ordered Appellant to
file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), Appellant
timely complied, and the trial court filed an opinion pursuant to Rule 1925(a).
Appellant has presented the following claims of error for our review:
1. The evidence was insufficient for the jury’s verdict of guilty on
the charge of aggravated assault as there was no evidence
presented that Appellant attempted to create a substantial risk of
death, i.e., serious bodily injury to the victim.
2. The evidence was insufficient for the jury’s verdict of guilty on
the charge of person not to possess a firearm where the
Commonwealth failed to establish the firearms found by the
Marcus Hook Police Department was a firearm under the
definition, rather an antique and that the firearms were not
operable.
3. The evidence was insufficient for the jury’s verdict of guilty on
the charge of PWID where there was no evidence Appellant
delivered any meth to anyone or that Appellant manufactured
meth.
4. The trial court erred in denying Appellant’s motion to suppress
where the Commonwealth of Pennsylvania failed to establish the
police had reasonable suspicion/probable cause to make a
protective sweep of Appellant’s residence and the alleged consent
given to search the residence occurred while Appellant was in
handcuffs and included entering a locked cabinet.
5. The jury’s verdict on the charges of aggravated assault, PWID,
and Person not to Possess a Firearm was against the weight of the
evidence as the evidence showed Appellant did not assault the
victim, did not sell drugs, and did not possess a firearm when he
was ineligible to do so.
6. The trial court erred in allowing the inadmissible hearsay
testimony of both Regina Scarpato (the victim’s mother) and
Officer Daniel Barnett regarding conversations with the victim
both on the date of the incident of January 4, 2016, and
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immediately prior to trial when the victim did not appear and/or
testify at trial.
7. The District Attorney’s Office failed to provide Appellant with
discovery, specifically the videotape on the date of the incident
from January 4, 2016, at the Marcus Hook Police Station which
was previously requested from the District Attorney’s Office
following Appellant’s initial arrest and the Commonwealth failed to
provide a full and complete copy of the firearms expert’s report as
well as the drug expert’s entire report, only several pages of the
report.
8. The trial court erred in sentencing Appellant as a third-strike
offender as Appellant was still serving a term of probation when
he was arrested and charged with the second “alleged” strike and
was never sentenced on the “second strike” as a second-strike
offender.
Appellant’s brief at 8-10 (cleaned up; issues renumbered).
Appellant’s first three issues challenge the sufficiency of the
evidence with respect to Appellant’s convictions for aggravated assault, PWID,
and person not to possess a firearm, respectively. See Appellant’s brief at
30-40. We will address these claims seriatim.
Our Supreme Court has discussed our standard and scope of review in
this context as follows: “[W]ith respect to our sufficiency review, our standard
of review is de novo, however, our scope of review is limited to considering
the evidence of record, and all reasonable inferences arising therefrom,
viewed in the light most favorable to the Commonwealth as the verdict
winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). We
also note at the outset that “the Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt relying wholly
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on circumstantial evidence,” and that “[b]oth direct and circumstantial
evidence must be considered equally when assessing the sufficiency of the
evidence.” Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa.Super.
2001). Finally, “any doubt about the defendant’s guilt is to be resolved by the
fact[-]finder unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined circumstances.”
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016).
The Commonwealth charged Appellant pursuant to the attempt
provision of the aggravated assault statute. See 18 Pa.C.S. § 2702(a)(1). A
person is guilty under this subsection if he “attempts to cause serious bodily
injury to another, or causes such injury intentionally, knowingly, or recklessly
under circumstances manifesting extreme indifference to the value of human
life . . . .” Id. Since the victim did not ultimately suffer a “serious bodily
injury,” defined at 18 Pa.C.S. § 2301 as an injury that, inter alia, “creates a
substantial risk of death,” the Commonwealth is required to prove that
Appellant possessed the specific intent to cause such an injury. See
Commonwealth v. Everett, 596 A.2d 244, 245 (Pa.Super. 1991). In this
context, “[a] person acts intentionally with respect to a material element of
the offense when . . . it is his conscious object to engage in conduct of that
nature or to cause such a result.” Id. (citing 18 Pa.C.S. § 302(b)(1)(i)).
Appellant asserts that the Commonwealth has presented insufficient
evidence of his intent to cause serious bodily injury to the victim. See
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Appellant’s brief at 31. Viewing the evidence in the light most favorable to
the Commonwealth, we must disagree.
Appellant emphasizes throughout his argument regarding aggravated
assault that there is a lack of “direct evidence” regarding his intent to cause
serious bodily injury. See Appellant’s brief at 31-32. However, there was
ample circumstantial evidence adduced by the Commonwealth at trial
bespeaking Appellant’s attempt to strangle the victim by hanging, including:
(1) testimony that the victim told3 her mother and the responding police
officers that Appellant tried to strangle her with a yellow nylon rope that was
“hung over something,” N.T. Trial, 8/22/17, at 33, 59, 63, 184; (2) testimony
that Appellant only failed in this attempted hanging when the rope broke while
the victim was being strangled, id. at 33; (3) testimony from multiple
witnesses that a red ligature mark was visible around the victim’s throat
immediately after the attack, id. at 34, 96; (4) photographs of these same
ligature marks, id. at 75-76, 95; and (5) the yellow nylon rope found in
Appellant’s apartment, id. at 68, 101.
Before this Court, Appellant does not dispute that the underlying attack
took place, but argues that “[t]here was no risk of death or loss or impairment
of a body organ” as a result of his assault of the victim. Appellant’s brief at
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3 The victim did not testify at trial, but her statements were admitted at trial
under various hearsay exceptions. Appellant has raised separate claims
regarding the admission of this evidence that we will address infra.
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32. In relevant part, he appears to suggest that an attempted strangulation
that fails to kill the victim does not establish the necessary specific intent to
cause serious bodily injury. However, our Supreme Court has held that the
neck is a “vital part” of a person’s body. See Commonwealth v. Montalvo,
956 A.2d 926, 933 (Pa. 2008). In this case, it seems that Appellant’s use of
the yellow nylon rope as a ligature upon the victim’s neck also transformed
that improvised implement into a “deadly weapon” under the circumstances.
See Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa.Super. 2010) (“Items
not normally considered deadly weapons can take on such status based upon
their use under the circumstances.”).
“[I]t is well-settled [that] the use of a deadly weapon on a vital part of
the body is sufficient to establish a specific intent to kill.” Commonwealth
v. Nichols, 692 A.2d 181, 184-85 (Pa.Super. 1997). The trial court’s
discussion of the risk posed by strangulation is compelling on this point:
The critically dangerous nature of strangulation on the neck is
axiomatic, . . . because of the impact of crushing the airway and
blocking off the flow of blood and oxygen to the brain . . . which
is responsible for spontaneous respirations. Obviously[,] the
carotid arteries which supply oxygen[-]rich blood from the heart
to the brain are at grave risk in strangulation cases such as this
....
Trial Court Opinion, 10/10/18, at 24. As such, Appellant’s use of the rope to
strangle the victim violently enough to leave visible marks on her neck and
produce palpable terror in her demeanor also permits an inference of specific
intent to kill or cause serious physical injury. See, e.g., Commonwealth v.
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Harvey, 526 A.2d 330, 334 (Pa. 1987) (holding that “tightening a strap
around a person’s neck” with “force and violence” was indicative of specific
intent); see also, e.g., Commonwealth v. Johnson, 327 A.2d 124, 127
(Pa. 1974) (holding that “placing a knotted cord around the neck of an elderly
woman and so rigging it as to strangle are consistent with” specific intent). 4
Based upon the reasoning above, we hold that Appellant’s attempted
strangulation-by-hanging permitted an inference of specific intent to cause
serious bodily injury. As such, we hold that the Commonwealth presented
sufficient evidence to sustain Appellant’s conviction for aggravated assault.
Appellant has also challenged the sufficiency of the evidence underlying
his conviction for persons not to possess firearms. See 18 Pa.C.S.
§ 6105(a)(1). Four guns were seized from Appellant’s apartment, only one of
which was found to be operable.5 See N.T. Trial, 8/23/17, at 37-41. In
relevant part, Appellant claims that: (1) the Commonwealth failed to
sufficiently rebut a question raised at trial as to whether the at-issue guns are
considered “antique firearms” pursuant to 18 Pa.C.S. § 6118(a) (“This
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4 We note that the holdings in both Harvey and Johnson relate to cases
where the victims were actually killed via strangulation. We cite them for the
limited proposition that in the context of ligature strangulation, an assailant’s
specific intent can be inferred from the manner of the assault.
5 Appellant’s argument suggests that only a firearm that is “operable” can
trigger a conviction under § 6105. However, that requirement has been
abrogated by statutory changes that took effect well before the events of this
case transpired. See Commonwealth v. Thomas, 988 A.2d 669, 671
(Pa.Super. 2009) (citing 18 P.S. § 4628).
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subchapter shall not apply to antique firearms.”); and (2) failed to establish
that Appellant “possessed” the at-issue firearms.
We note that Appellant introduced only his uncorroborated testimony to
suggest that any of these guns fell under any of the relevant statutory
definitions of “antique firearms.” See 18 Pa.C.S. § 6118(c); see also N.T.
Trial, 8/23/17, at 121-23. Pennsylvania case law suggests that a defendant
carries the burden of proof in this arena. See Commonwealth v. Wolfgang,
97 A.3d 1274, 1280 n.8 (Pa.Cmwlth. 2014) (stating that a defendant must
establish the applicability of § 6118(a) “in fact and in law”).6 Even assuming,
arguendo, that Appellant had established that all of these guns were antique
firearms, § 6118(a) does not apply “to the provisions of section 6105 (relating
to persons not to possess, use, manufacture, control, sell or transfer firearms)
if such antique firearms . . . are suitable for use.” 18 Pa.C.S. § 6118(b)
(“Exception.”). Appellant was charged pursuant to § 6105(a), and the
Commonwealth’s expert testified that at least one of the seized guns was fully
operational and suitable for use. As such, the exception applies and
Appellant’s claim on this point is unavailing.
Appellant’s sufficiency argument regarding the element of possession is
equally meritless, as Appellant admitted at trial to possessing all of the
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6 While “[t]his Court is not bound by the decisions of the Commonwealth
Court,” such decisions “provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010).
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firearms seized from his apartment. See N.T. Trial, 8/23/17, at 121-23.
Therefore, no relief is due on this claim.
Appellant similarly challenges the sufficiency of his conviction for PWID,
based upon the methamphetamine seized from his apartment. He asserts
that the Commonwealth failed to establish that he: (1) possessed the
narcotics seized from the apartment; and (2) with the necessary intent to
“deliver.” See Appellant’s brief at 36-40.
The following additional legal principles will guide our review:
Since the police did not find any narcotics on Appellant’s person,
the Commonwealth was required to prove that Appellant
constructively possessed the [narcotics found at his apartment].
Constructive possession is the ability to exercise conscious control
or dominion over the illegal substance and the intent to exercise
that control. The intent to exercise conscious dominion can be
inferred from the totality of the circumstances.
Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super. 2003) (internal
citations omitted).
Reviewing the totality of the circumstances as presented at trial, the
Commonwealth adduced testimony that several individually packaged bags of
methamphetamine were seized from various places in Appellant’s apartment.
See N.T. Trial, 8/22/17, at 83, 90. Appellant claims that the narcotics
belonged to either the victim or a former housemate that moved out shortly
before this controversy began, but Appellant’s own testimony at trial indicates
that the parties enjoyed joint control and equal access to the areas where
drugs were discovered. See N.T. Trial, 8/23/17, at 203-04. As such, the jury
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could have readily inferred that Appellant constructively possessed the at-
issue narcotics. See Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa.
1986) (constructive possession of narcotics established where multiple parties
lived in an apartment where narcotics were located and enjoyed “joint control
over and equal access to the area” where narcotics were ultimately found).
Appellant’s argument on this point fails.
With respect to establishing Appellant’s intent to deliver, the
Commonwealth presented testimony that a digital scale, numerous plastic
bags commonly used for packaging narcotics, and notebooks containing
information on the manufacture of methamphetamine were seized from a
locked drawer belonging to Appellant. See N.T. Trial, 8/22/17, at 90-92; see
also N.T Trial, 8/23/17, at 203-06.
The Commonwealth presented expert testimony that: (1) confirmed
that the various containers of a crystalline substance seized from Appellant’s
apartment were, in fact, methamphetamine, see N.T. Trial, 8/23/17, at 18-
21; and (2) opined at length that the evidence seized from Appellant’s
apartment indicated his involvement in the regular distribution of
methamphetamine, including the residue in empty bags, the packaging of the
narcotics for sale, the presence of the digital scale, and the content of the
notebooks that included specific instructions and notations regarding the
manufacture and sale of methamphetamines. Id. at 58-83.
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We also note that Appellant was in possession of at least one operable
handgun at the time of his arrest. Furthermore, none of the drug
paraphernalia seized from Appellant’s apartment related to his personal use
of methamphetamine as Appellant stated that he only personally used
marijuana, which also leads to a reasonable inference that the
methamphetamine was intended for distribution. Id. at 123-24.
In sum, Appellant’s argument with respect to intent boils down to an
assertion that the Commonwealth could not establish his intent to deliver
without further evidence of “direct sales” actually carried out by Appellant.
See Appellant’s brief at 40. However, this Court has previously held that the
Commonwealth may establish intent to deliver via entirely circumstantial
evidence. See Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa.Super.
2005). Overall, the evidence was sufficient for the jury to infer Appellant’s
intent to deliver narcotics, specifically methamphetamine. See
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007) (holding
that factors auguring in favor of a finding of intent to deliver include
individualized packaging of the narcotics, the presence of unused baggies,
expert testimony, the defendant’s possession of a handgun, and the absence
of drug paraphernalia related to personal use). No relief is due on this claim.
Appellant’s fourth issue challenges the trial court’s denial of his
suppression motion, which requested the exclusion of evidence discovered and
seized by the Marcus Hook Police Department during their protective sweep
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and consent search of Appellant’s apartment. See Appellant’s brief at 17-29.
Appellant has styled this inquiry as involving two separate questions: (1)
whether the protective sweep carried out by law enforcement was legally
valid; and (2) whether Appellant’s consent to search was properly obtained.
In addition to defending the validity of the protective sweep, the
Commonwealth argues that Appellant’s subsequent and voluntary consent to
a search of his apartment renders the evidence admissible even if the
protective sweep is invalidated. See Commonwealth brief at 17.
These claims necessarily implicate the rulings of the trial court on
matters of suppression. The following legal principles will guide our review:
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, 121 A.3d 524, 526-27 (Pa.Super. 2015) (internal
citations omitted).
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The initial portion of Appellant’s fourth claim concerns the alleged
“protective sweep” conducted by the Marcus Hook Police Department incident
to Appellant’s arrest outside of his apartment. Appellant challenges the trial
court’s conclusion that “Officer Barnett and other officers rightfully conducted
a protective sweep of [Appellant’s] apartment to reduce any threat and secure
what would be the focus of a criminal investigation.” See Order, 1/23/17, at
unnumbered 5. In this context, a “protective sweep” is “a quick and limited
search of premises, incident to an arrest and conducted to protect the safety
of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327 (1990).
Prior to issuing its ruling, the trial court held a suppression hearing at which
Officer Barnett testified as to the events of that evening. See N.T.
Suppression Hearing, 3/22/16, at 5-102.
It is not clear that the protective sweep in this case was supported by
the factual circumstances, as the immediate danger to the victim had passed
when officers took Appellant into custody. See Commonwealth v. Wright,
742 A.2d 661, 664-65 (Pa. 1999) (holding that police are not permitted to
undertake a warrantless search following an incident of domestic violence
where “the potential for imminent violence had been eliminated” and “there
was no indication that the safety of others was threatened, evidence might be
lost or destroyed, or police lacked the ability to maintain security at the
premises pending the issuance of a search warrant”). Furthermore, the
entrance to Appellant’s apartment was located on the second story of the
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building and accessible only via an iron staircase, which was not in close
proximity to the immediate location of Appellant’s arrest. See
Commonwealth v. Taylor, 771 A.2d 1261, 1267-68 (Pa. 2001) (“Because
the sweep in the present case extended beyond the area within the immediate
vicinity of the arrest, there must be articulable facts which . . . would warrant
a reasonably prudent officer in believing that the area to be swept harbors an
individual posing a danger . . . .”).
Instantly, there was no testimony adduced at the suppression hearing
that could have established a reasonable belief that additional assailants may
have been lying in wait for law enforcement once Appellant had been taken
into custody. While the victim’s warnings to law enforcement regarding
Appellant’s risk for violence were certainly sufficient to put officers on their
guard, that threat dissipated completely with Appellant’s peaceful surrender
at the bottom of the staircase to his apartment.
Assuming, arguendo, that the at-issue protective sweep was not
appropriate under the circumstances, Appellant’s consent to search his
apartment was nonetheless validly obtained by the Marcus Hook Police
Department. This distinction ultimately renders the search and seizure of
evidence from Appellant’s apartment valid.7 See Commonwealth v. Reid,
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7 This rationale differs from that relied upon by the trial court in its Rule
1925(a) opinion and the underlying ruling. “It is well[-]settled that where the
result is correct, an appellate court may affirm a lower court’s decision on any
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811 A.2d 530, 543 (Pa. 2002) (“If the court finds that an illegal seizure
preceded an alleged consent but the consent was not caused by the illegal
seizure . . . , the court must then determine whether the prosecution has
adequately proven that the consent was made voluntarily . . . .”). Instantly,
there is no allegation that the protective sweep somehow “caused” Appellant
to give his consent. To the contrary, the testimony presented by the
Commonwealth at the suppression hearing uniformly indicates that police did
not utilize any arguable “fruits” of its protective sweep in obtaining consent
from Appellant.
Thus, the question is whether Appellant’s consent was freely given. “In
determining the validity of a given consent, the Commonwealth bears the
burden of establishing that a consent is the product of an essentially free and
unconstrained choice—not the result of duress or coercion, express or implied,
or a will overborne—under the totality of the circumstances.”
Commonwealth v. Krenzel, 209 A.3d 1024, 1028 (Pa.Super. 2019). While
there is no “hard and fast list of factors” that are relevant to this
determination, some considerations include: (1) the defendant’s custodial
status; (2) the use of duress or coercive tactics by law enforcement personnel;
(3) the defendant’s knowledge of his right to refuse to consent; (4) the
defendant’s education and intelligence; (5) the defendant’s belief that no
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ground without regard to the ground relied upon by the lower court itself.”
Commonwealth v. Singletary, 803 A.2d 769, 772-73 (Pa.Super. 2002).
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incriminating evidence will be found; and (6) the extent and level of the
defendant’s cooperation with the law enforcement personnel. Id.Appellant has asserted that his consent was coerced, but his argument
is threadbare. His only claims of duress are that: (1) he was taken into
custody by multiple officers of the Marcus Hook Police Department and placed
in handcuffs; (2) he was informed that police would seek a warrant if he
refused his consent; and (3) he signed an allegedly incorrectly dated consent-
to-search form. See Appellant’s brief at 27-28.
The trial found these allegations insufficient to overcome the
uncontroverted testimony at the suppression hearing that Appellant’s consent
was freely offered by way of cooperation with law enforcement. See N.T.
Suppression Hearing, 3/22/16, at 24 (“[R]ight as we were reaching the car,
he told us that he didn’t want to give us a hard time, and that he would consent
to a search.”). There is no evidence that police attempted to coerce
Appellant’s consent, and simply being placed into custody does not qualify as
per se duress for the purposes of assessing the voluntariness of consent. See
U.S. v. Watson, 423 U.S. 411, 423 (1976) (“[T]he fact of custody alone has
never been enough in itself to demonstrate a coerced confession or consent
to search.”). Furthermore, the mere fact that Appellant was informed that
police would apply for a warrant is also of no moment. See Commonwealth
v. Mack, 796 A.2d 967, 971-72 (Pa. 2002) (“Although the police informed
Appellant that they ‘would have to get a warrant’ if she refused her consent,
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this accurate statement informed Appellant of the true nature of her
predicament, . . . . [I]t is not a coercive tactic by the police.”).
Overall, there is no indication of undue coercion by law enforcement.
Because Appellant’s consent was freely given and not connected to the earlier
seizure of his apartment by the Marcus Hook Police Department, any arguable
taint from the protective sweep is excused. See Commonwealth v.
Strickler, 757 A.2d 884, 888-89 (Pa. 2000) (holding consent to search is
validly given even if preceded by an illegal seizure so long as consent was not
the product of that illegal seizure); see also Reid, supra at 547. Thus, no
relief is due on Appellant’s fourth issue.8
Appellant next raises a challenge to the weight of the evidence with
respect to the same three offenses implicated by his sufficiency arguments.
See Appellant’s brief at 41-43. At the outset, we note that these claims were
properly preserved in the trial court via a post-sentence motion. The following
legal standards will govern our review:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
____________________________________________
8 Appellant has also included a claim that the police violated the scope of
consent by opening a locked drawer in Appellant’s apartment with a
screwdriver during the search of Appellant’s apartment. Appellant has waived
this claim for failing to raise it before the trial court. Appellant’s three separate
suppression motions make no argument concerning an alleged violation of the
scope of Appellant’s consent and the issue was not raised at the suppression
hearing. As such, 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.”).
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presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted, emphasis in original). In its Rule 1925(a) opinion, the trial court
detailed the evidence adduced against Appellant and concluded that “[t]he
weight of the evidence at trial overwhelmingly supported [Appellant’s]
convictions.” Trial Court Opinion, 10/10/18, at 35.
Appellant’s arguments are cursory and unpersuasive. Indeed, much of
Appellant’s discussion conflates the distinct issues of sufficiency and weight
by reasserting arguments that concern whether the Commonwealth’s
evidence supported the underlying convictions. However, “a true weight of
the evidence challenge concedes that sufficient evidence exists to sustain the
verdict but questions which evidence is to be believed.” Commonwealth v.
Morgan, 913 A.2d 906, 909 (Pa.Super. 2006). “Accordingly, a weight of the
evidence challenge contests the weight that is afforded the testimonial
evidence.” Id.The only credibility arguments presented by Appellant concern minor
chronological inconsistencies in the testimony of the police officers called at
trial. See Appellant’s brief at 42-43. However, mere conflicts in the testimony
of the Commonwealth’s witnesses do not serve to completely undermine the
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weight of the evidence against Appellant, particularly where the jury has been
provided with a fair opportunity to assess those inconsistencies and reach its
own determination. See Commonwealth v. Stiles, 143 A.3d 968, 980-81
(Pa.Super. 2016) (rejecting arguments that a verdict is against the weight of
the evidence based solely upon “various inconsistencies in the testimony and
pretrial statements” of Commonwealth witnesses); see also
Commonwealth v. Home, 89 A.3d 277, 285-86 (Pa.Super. 2014) (same).
We discern no abuse of discretion by the trial court. As such, this claim fails.
Appellant’s next issue addresses the respective testimonies of Officer
Barnett and the victim’s mother. Specifically, Appellant avers that the trial
court erred in admitting hearsay testimony at trial from both individuals based
upon the exception for “excited utterances” made by the victim immediately
after Appellant’s assault. See Appellant’s brief at 43-49.
This claim arises pursuant to evidentiary rulings made by the trial court.
In this context, “[a]ppellate courts review evidentiary decisions for an abuse
of discretion.” Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017).
“An abuse of discretion is not merely an error in judgment, but if in reaching
a conclusion the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.” Id.Under the Pennsylvania Rules of Evidence, “hearsay” is defined as a
statement that: (1) the declarant does not make while testifying at the current
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trial or hearing; and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement. See Pa.R.E. 801(c)(1)-(2). As a general
rule, hearsay is not admissible under Pennsylvania law. See Pa.R.E. 802.
However, there are a number of exceptions to this general maxim, including
one for statements that qualify as an “excited utterance.” See Pa.R.E. 803(2).
For our purposes, an excited utterance is defined as “[a] statement relating
to a startling event or condition, made while the declarant was under the
stress of excitement that it caused.” Id.With reference to potential temporal issues surrounding this hearsay
exception, an official comment to the Rules of Evidence explains as follows:
[A]n excited utterance: (1) need not describe or explain the
startling event or condition; it need only relate to it; and (2) need
not be made contemporaneously with, or immediately after, the
startling event. It is sufficient if the stress of excitement created
by the startling event or condition persists as a substantial factor
in provoking the utterance.
There is no set time interval following a startling event or condition
after which an utterance relating to it will be ineligible for
exception to the hearsay rules as an excited utterance. In
Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa.Super.
1978), the [Superior Court] explained:
The declaration need not be strictly contemporaneous with
the existing cause, nor is there a definite and fixed time limit
. . . . Rather, each case must be judged on its own facts,
and a lapse of time of several hours has not negated the
characterization of a statement as an “excited utterance.”
. . . The crucial question, regardless of the time lapse, is
whether, at the time the statement is made, the nervous
excitement continues to dominate while the reflective
processes remain in abeyance.
Official Comment to Pa.R.E. 803(2) (emphasis added).
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The testimony adduced at trial indicated that the victim ran to her
mother’s house immediately after the assault, which is approximately one-
half of one block away from Appellant’s home. See N.T. Trial, 8/22/17, at 32-
33. After responding to the victim’s banging on her door, the victim’s mother
testified that she was “hysterical and crying.” Id. at 32, 42. At this point,
the victim spontaneously stated that Appellant had tried to “hang” or
“strangle” her. Id. at 32-33. The police were summoned.
When he arrived at the scene minutes later, Officer Barnett’s description
of the victim is in parity with that of her mother. He also described her as
“hysterical,” but went into greater detail: “She was sobbing crying. Her face
was bright red. She could barely catch her breath. She just kept shaking her
hands like she didn’t know what to do with herself, breathing heavy. She just
looked in my experience terrified and upset.” Id. at 57-58. In fact, the
victim’s level of agitation was so extreme that she was seen “running up and
down the street” after the assault, id. at 41-42, and was pacing throughout
her interactions with law enforcement. Id. at 57. Despite her agitated state,
the victim managed to tell the police that Appellant had attempted to strangle
her with a rope in response to questioning from police.9 Id. at 59.
____________________________________________
9 Appellant asserts that the fact that the victim’s statement to police were
made in response to “direct questioning” from the police. However, “[t]he
weight of authority in this Commonwealth is that responses to questions are
not, per se, excluded from consideration as excited utterances.”
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Based on this testimony, we find no abuse of discretion in the trial
court’s ruling that the assault was sufficiently “startling” to render these
statements “excited utterances” within the meaning of Pennsylvania’s hearsay
jurisprudence. See Commonwealth v. Barnyak, 639 A.2d 40, 43-44
(Pa.Super. 1994) (holding that statements made by a “panic stricken”
shooting victim at the hospital in response to police questioning were
admissible under the “excited utterance” hearsay exception).
As the trial court further noted, these statements also appear to have
occurred in close chronological proximity to the assault. Although there is not
a definitive timeline, the testimony adduced at trial indicates that the events
discussed above transpired in a mere matter of minutes. See N.T. Trial,
8/22/17, at 33, 36, 57 (establishing that the victim’s mother called the police
after her daughter’s initial utterances, and that police responded to that call
within two minutes). As such, we discern no abuse of discretion in the trial
court’s conclusion that these statements were also close enough in time to the
assault to qualify as “excited utterances” for hearsay purposes. See
Commonwealth v. Hess, 411 A.2d 830, 834 (Pa.Super. 1979) (collecting
____________________________________________
Commonwealth v. Sanford, 580 A.2d 784, 789 (Pa.Super. 1990),
abrogated on separate grounds, Crawford v. Washington, 541 U.S. 36(2004). The mere fact that the victim’s utterances were made in response to
questions posed by law enforcement does not automatically remove it from
this exception to hearsay. Id.- 24 -
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cases). Overall, we find no abuse of discretion in the trial court’s ruling on
this issue. Appellant is entitled to no relief on this claim.
Appellant has also raised a claim challenging other testimony from the
victim’s mother concerning a phone conversation she had with the victim
immediately prior to trial. Id. at 49-51. The victim’s mother testified that
the victim told her that she was still “scared” of Appellant. Id. at 50.
Appellant objected to this testimony on the basis of hearsay, and it was
admitted pursuant to the “state of mind” exception. Id. at 49-51; see also
Pa.R.E. 803(3) (providing that the rule against hearsay does not apply to “[a]
statement of the declarant’s then-existing state of mind . . . or emotional,
sensory, or physical condition,” including any “mental feeling”).
Appellant essentially asserts that there was no legitimate reason for this
testimony to be admitted. However, this Court has previously upheld the
admission of such testimony under the state-of-mind exception where such
evidence speaks to a relevant factor in the case. See Commonwealth v.
Luster, 71 A.3d 1029, 1041 (Pa.Super. 2013) (“[H]earsay evidence
concerning the victim’s state of mind is admissible only where the victim’s
state of mind is a ‘factor in issue’ at trial.”). Instantly, evidence of the victim’s
continuing fear of Appellant speaks to his ill will or malice, which is certainly
relevant with respect to the charge of aggravated assault. See
Commonwealth v. Kunkle, 79 A.3d 1173, 1185 (Pa.Super. 2013) (“[T]he
victim’s statements were admissible because they reflect Appellant’s ill will
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and malice toward the victim.”) (citing Commonwealth v. Luster, 71 A.3d
1029, 1041 (Pa.Super. 2013)). Thus, no relief is due on this claim.
Appellant’s penultimate issue involves allegations that the
Commonwealth committed discovery violations under the framework provided
by Brady v. Maryland, 373 U.S. 83 (1963) (holding that prosecution’s
suppression of evidence favorable to accused violates due process where
evidence is material to guilt or punishment, irrespective of prosecution’s good
or bad faith). In particular, Appellant asserts that the Commonwealth
committed Brady violations by allegedly suppressing: (1) videotape
recordings of the police station on the evening of the assault; and (2) a full
report from the lab technician that tested the narcotics in this case. See
Appellant’s brief at 51-54. The trial court found no Brady violation. We agree.
Our Supreme Court has discussed the legal standards attendant to this
area of the law as follows: “To establish a Brady violation, a defendant must
show: the prosecution suppressed the evidence, either willfully or
inadvertently; the evidence is favorable to the defense; and the evidence is
material.” Commonwealth v. Birdsong, 24 A.3d 319, 327 (Pa. 2011)
(cleaned up). We emphasize that a defendant bears the burden of establishing
these elements by reference to the certified record. See Commonwealth v.
Paddy, 15 A.3d 431, 451 (Pa. 2011).
Applying this rubric, it is clear that both of Appellant’s claims are
meritless. Beyond failing to discuss any of the relevant legal standards that
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undergird our analysis of alleged Brady violations, Appellant has failed to
establish any of the three required prongs. It is entirely unclear based upon
Appellant’s references to the factual record when (or if) the Commonwealth
ever possessed these complained-of discovery materials. Furthermore,
Appellant’s arguments present only a mere possibility that these items may
have provided the basis for “testing” the credibility of the Commonwealth’s
witnesses and their averments. See Appellant’s brief at 53 (“The purpose of
the discovery of the videos was to test the credibility of Officer Barnett.”); see
also id. at 54 (offering no favorability or materiality justifications regarding
the technician’s report). In sum, Appellant has failed to articulate how this
evidence was either beneficial or material beyond pure conjecture. Such
speculative arguments are insufficient:
Evidence is only material if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different. The mere possibility
that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the
trial, does not establish materiality in the constitutional
sense.
Birdsong, supra at 327 (emphasis added). No relief is due.
In his final claim, Appellant avers that the sentencing court erred in
treating Appellant as a “third-strike offender” pursuant to 42 Pa.C.S. § 9714.
This issue implicates the legality of Appellant’s sentence. See
Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001).
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Consequently, “our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa.Super. 2017).
In pertinent part, the at-issue statutory provision provides as follows:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary. . . .
(2) Where the person had at the time of the commission of
the current offense previously been convicted of two or
more such crimes of violence arising from separate criminal
transactions, the person shall be sentenced to a minimum
sentence of at least 25 years of total confinement,
notwithstanding any other provision of this title or other
statute to the contrary. . . .
(a.1) Mandatory maximum.— An offender sentenced to a
mandatory minimum sentence under this section shall be
sentenced to a maximum sentence equal to twice the mandatory
minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
to sentence of imprisonment for felony) or any other provision of
this title or other statute to the contrary.
....
(d) Proof at sentencing.-- . . . . The sentencing court, prior to
imposing sentence on an offender under subsection (a), shall have
a complete record of the previous convictions of the offender
....
(e) Authority of court in sentencing.—There shall be no
authority in any court to impose on an offender to which this
section is applicable any lesser sentence than provide for in
subsections (a) and (a.1) . . . .
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42 Pa.C.S. § 9714. Under this framework, Appellant was sentenced to twenty-
five to fifty years of imprisonment with respect to this conviction for
aggravated assault. See Sentencing Order, 10/11/17, at ¶ 1.
Throughout his discussion of this issue, Appellant repeatedly asserts
that the certified record does not adequately support a finding that the
sentencing court complied with § 9714(d) by reviewing the “complete record”
regarding Appellant’s prior felony convictions. See Appellant’s brief at 58-59
(citing Commonwealth v. Norris, 819 A.2d 568, 575-76 (Pa.Super. 2003)
(remanding for resentencing where “it does not appear that the sentencing
court had before it [the defendant’s] complete record of prior convictions”)).
Appellant’s claim is both legally meritless and factually inaccurate. The
Commonwealth provided the sentencing court with certified copies of the
records regarding Appellant’s predicate convictions under § 9714. See N.T.
Sentencing, 10/4/17, at 3-5. These records, together with the testimony at
the hearing, established that Appellant was convicted of multiple counts of
burglary in 1997.10 Id. at 3-15. After completing his term of imprisonment
with respect to those charges and while still on probation, Appellant was
convicted of aggravated assault in 2001. Id. Thus, we find Appellant’s
attempts to cast doubt upon the content of the certified record unavailing.
____________________________________________
10 In this claim, Appellant includes an allegation that the Commonwealth failed
to establish that his prior convictions for burglary were “crimes of violence”
under § 9714. This claim is waived as a result of Appellant’s failure to include
it in his Rule 1925(b) concise statement. See Pa.R.A.P. 1925(b)(4)(vii).
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With respect to the remainder of Appellant’s argument, we discern that
Appellant is arguing that his prior felony convictions were too close-in-time to
one another to permit the trial court to treat them as first-strike and second-
strike offenses, respectively. According to Appellant, such treatment violates
the “recidivist philosophy” underlying § 9714 as identified by our Supreme
Court in Commonwealth v. McClintic, 909 A.2d 1241, 1249 (Pa. 2006)
(“[E]ach strike that serves as a predicate offense must be followed by
sentencing and, by necessary implication, an opportunity for reform, before
the offender commits the next strike.”).
Appellant’s reliance upon this case law is misplaced. The holding in
McClintic involved a situation where the Commonwealth attempted to utilize
multiple crimes from the “same criminal episode” to serve as “separate
sentence enhancements” under § 9714. Instantly, all of Appellant’s
underlying felony convictions related to distinct, prior criminal episodes.
Contrary to Appellant’s arguments, he had ample years between his respective
1997 convictions for burglary, his 2001 conviction for aggravated assault, and
his 2017 conviction for aggravated assault in which to seize an “opportunity
for reform.” He declined to do so, to his detriment. No relief is due.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/20
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