Com. v. Freeman, C. , 128 A.3d 1231 ( 2015 )

J-A24025-15
2015 Pa. Super. 252
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES FREEMAN
Appellant No. 3607 EDA 2014
Appeal from the Judgment of Sentence of June 24, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0004824-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
OPINION BY WECHT, J.: FILED DECEMBER 02, 2015
Charles Freeman appeals the June 24, 2014 judgment of sentence.
We affirm.
On May 5, 2013, Freeman, Andre Collier, Omar Miller, and Rasheed
Teel devised a plan to rob nineteen-year-old Kareem Borowy. Freeman
drove the group to Borowy’s house in Pottstown, Pennsylvania, and waited in
the car while Miller, Teel, and Collier entered the residence. Once inside,
Collier, armed with a .45 caliber Glock pistol, demanded that Borowy hand
over a large quantity of marijuana and $3,000.00 in cash. Borowy pleaded
with the robbers, insisting that there was no money in the home.
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*
Retired Senior Judge assigned to the Superior Court.
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Sensing that the trio was growing impatient, Borowy falsely told them
that he kept his money in a “stash house” at a different location. The men
then took Borowy outside and forced him into the getaway car. Freeman
drove away from the residence, presumably intending to travel to Borowy’s
contrived stash house. When the vehicle slowed down on a rural roadway in
Lower Pottsgrove Township, Borowy managed to escape. Collier chased
after Borowy and shot him twice. When he returned to the vehicle, Collier
told the others that he saw Borowy fall to the ground, and instructed
Freeman to drive away.
Although severely injured, Borowy managed to crawl on his hands and
knees to the main roadway. A passing motorist spotted Borowy lying beside
the road a short time later and called 911. When the police arrived, Borowy
was unresponsive. He was pronounced dead at the scene.
In response to an anonymous tip, Montgomery County Detectives
Todd Richard and Paul Bradbury interviewed Teel on May 9, 2013. Although
he initially denied participating in the robbery and/or murder, he eventually
admitted that he was present during the crimes. Teel told the detectives
that Freeman drove him, Collier, and another male whose name he did not
know from Philadelphia to Pottstown, where the group intended to rob
Borowy. Teel identified Collier as the gunman and Freeman as the driver of
the getaway car, which he described to the detectives as a light gray four-
door vehicle.
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On May 10, 2013, Detectives Mark Minzola and Joseph Campbell went
to Freeman’s residence, which he shared with his girlfriend, Janae Nixon.
The detectives were dressed in formal business attire and carried firearms
concealed beneath their suit jackets. Detective Minzola told Freeman that
he was conducting a criminal investigation and wanted to speak with him.
Freeman agreed to go to the Lower Pottsgrove Township Police Department,
but told the detectives that he did not have a means of transportation. The
detectives offered to drive Freeman to the police station, and he accepted
that offer.
Detective Campbell drove Freeman and Detective Minzola to the police
station in an unmarked police vehicle with no “cage or barrier” dividing the
passenger compartment. See Notes of Testimony Suppression (“N.T.S.”),
1/7/2014, at 28. The trip to the station lasted approximately ten to fifteen
minutes. Once they arrived at the station, the detectives led Freeman into
an interview room. Detective Minzola explained to Freeman that he had
closed the interview-room door for privacy, but that it was unlocked.
Detective Minzola also explained to Freeman that he was not under arrest,
and that he was free to leave at any time.
Back at Freeman’s residence, Detective Todd Richard arrived shortly
after Freeman left with Detectives Minzola and Campbell. Detective Richard
spoke with Nixon, and obtained her written consent to search the residence.
Detective Richard asked Nixon if she knew where Freeman’s cell phone was
located. Nixon told Detective Richard that Freeman had multiple cell
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phones, but that she saw one of them charging in the living room right
before the detectives arrived. When Nixon could not find Freeman’s phone
where she last saw it, she called it. Once the call connected, Detective
Richard could hear a loud ringing sound coming from a plastic garbage can
in the kitchen. Detective Richard removed the lid from the garbage can, and
found two cell phones therein. He removed the phones, which Nixon
confirmed belonged to Freeman, and remained at the residence while his
colleagues obtained a warrant to search the home and to seize Freeman’s
cell phones.1
Meanwhile, at the police station, Detective Minzola told Freeman that
he was investigating a home invasion, kidnapping, and murder that occurred
in Montgomery County on May 5, 2013. Detective Minzola then proceeded
to ask Freeman a series of questions and transcribed Freeman’s answers.
Freeman categorically denied participating in the crimes. He told Detective
Minzola that he was at a friend’s house until 12:30 or 1:00 in the afternoon
on the day of Borowy’s murder. According to Freeman, he stopped to get
gas on the way home, when he noticed that his car was overheating.
Freeman then drove the vehicle, a silver Buick LeSabre, to his cousin’s
garage in Philadelphia to have it repaired. Freeman told Detective Minzola
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1
Three days later, on May 13, 2013, the police obtained a second
search warrant, which authorized them to examine the content stored on
Freeman’s devices.
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that he waited at his cousin’s garage until Nixon picked him up. The two
then went out for dinner.
After approximately fifty minutes of questioning, Detective Minzola
printed the transcript of the interview and asked Freeman to review it.
Freeman made two corrections to the transcript, agreed that it was
otherwise accurate, and signed it. After reviewing Freeman’s statement,
Detective Minzola told Freeman that he suspected that Freeman was being
dishonest. He then explained to Freeman the legal concept of accomplice
liability. Freeman then became “loud and agitated” and denied any
involvement in Borowy’s murder. N.T.S. at 36. Freeman asked if he was
free to leave, and Detective Minzola reminded him that he was. Rather than
leaving, however, Freeman asked to speak with Detective Minzola’s
supervisor, Detective James McGowan.
Detective McGowan came into the interview room, introduced himself,
and sat down. Detective McGowan told Freeman that the homicide
investigation was going to continue, but that Freeman was free to leave.
Detective McGowan gave Freeman his business card and cell phone number,
and Freeman left the police station. Freeman returned approximately two
hours later and asked for a ride home. Detective Minzola told Freeman that
he could drive Freeman back to his residence in ten minutes. Freeman
waited for a few minutes, but then apparently changed his mind and walked
out of the police station.
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On May 11, 2013, detectives found Freeman’s silver Buick LeSabre
parked on the 5500 block of Yocum Street in Philadelphia. When the
detectives found the vehicle, all four doors were open and a man was
cleaning the interior. The detectives towed the Buick to a secure holding
area to prevent any potential evidence from being destroyed. On May 13,
2013, they applied for, and executed, a warrant to search the vehicle.
Detective Campbell arrested Freeman on May 20, 2013, and charged
him with homicide, kidnapping, robbery, persons not to possess a firearm,
receiving stolen property, false imprisonment, and conspiracy to commit
each of those offenses.2 On June 3, 2013, a team of federal, state, and local
law enforcement officers arrested Miller on the sidewalk outside of his
uncle’s home in Philadelphia, Pennsylvania. The officers transported Miller to
the homicide unit of the Montgomery County Detectives’ Bureau. Miller
initially denied participating either in the robbery or in the murder.
However, after several hours of questioning by detectives, Miller confessed
to participating in the robbery along with Freeman, Collier, and Teel.
Collier evaded arrest until August 5, 2013, when the Pennsylvania
State Police and the United States Marshals arrested him in Carbon County,
Pennsylvania. Teel pleaded guilty to third-degree murder, and agreed to
testify for the Commonwealth against his co-conspirators. Prior to
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2
18 Pa.C.S. §§ 2502, 2901(a)(3), 3701(a)(1)(i), 6105, 3925, 2903, and
903(b), respectively.
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Freeman’s trial, the Commonwealth filed notice of its intent to consolidate
the cases against Collier, Miller, and Freeman. See Pa.R.Crim.P. 582
(“Defendants charged in separate indictments or informations may be tried
together if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an
offense or offenses.”).
On December 26, 2013, Freeman filed an omnibus pretrial motion.
Therein, Freeman sought to suppress a litany of physical and testimonial
evidence. Specifically, Freeman argued that: (1) the statements Freeman
made to detectives on May 10, 2013, were obtained in violation of Miranda
v. Arizona, 384 U.S. 436 (1966); (2) the May 10, 2013 warrant to search
Freeman’s residence was not supported by probable cause; (3) Detective
Richard conducted an illegal search when he removed Freeman’s cell phones
from a kitchen garbage can without a warrant; (4) the May 13, 2013
warrant to search the content stored on Freeman’s cell phones was not
supported by probable cause; and (5) detectives illegally seized Freeman’s
Buick LeSabre on May 11, 2013. On April 15, 2014, following a hearing, the
trial court denied Freeman’s suppression motions.
In his December 26, 2013 motion, Freeman also sought severance of
his case from the prosecution of his co-defendants. Freeman argued that a
joint trial would unfairly prejudice him because “[t]he various statements of
[Freeman’s] co-defendants are not capable of separation by the jury, and
there is a danger of confusion.” See Freeman’s Motion for Severance,
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12/26/2013, at 5. On March 14, 2014, following a hearing, the trial court
denied Freeman’s motion to sever.
Freeman, Collier, and Miller proceeded to a jury trial, which
commenced on April 15, 2014. On April 16, 2014, Teel testified for the
Commonwealth. He explained that he and his co-conspirators concocted a
plan to rob Borowy, and that Collier shot Borowy after he escaped from
Freeman’s vehicle in Lower Pottsgrove Township. On April 18, 2014,
Detective Todd Richard of the Montgomery County Detectives’ Bureau read
to the jury Miller’s confession, which, pursuant to Bruton v. United States,
391 U.S. 123 (1968),3 the Commonwealth redacted to eliminate all
references to Collier and Freeman.4 The trial court then instructed the jury
to consider Miller’s confession as evidence against Miller only, and not as
evidence against Collier or Freeman.
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3
In Bruton, the United States Supreme Court held that a non-testifying
co-defendant’s confession implicating another defendant in the charged
offense is inadmissible against the defendant because it violates his Sixth
Amendment right to confront and to cross-examine witnesses testifying
against him. 391 U.S. at 137.
4
Prior to trial, both Collier and the Commonwealth submitted to the trial
court proposed redactions to Miller’s statement. Although both versions
were very similar, Collier took issue with a reference to Freeman’s paramour
(on page four of Miller’s statement) and a reference to Teel as “Andre’s
cousin” (on the tenth page of Miller’s statement). In response, the
Commonwealth deleted both of those answers and the questions that
preceded them. Freeman did not suggest his own redactions, but he did
endorse Collier’s proposal.
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On April 21, 2014, following a five-day jury trial, Freeman was
convicted of second-degree murder, robbery, kidnapping, conspiracy to
commit kidnapping, and conspiracy to commit robbery. On June 24, 2014,
the trial court sentenced Freeman to life imprisonment.
On December 17, 2014, Freeman timely filed a notice of appeal. On
January 7, 2015, the trial court ordered Freeman to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Freeman
timely complied. On January 28, 2015, the trial court filed a Pa.R.A.P.
1925(a) opinion.
Freeman presents twelve issues5 for our consideration:
1. Whether the trial court erred in not suppressing the written
statement of [Freeman] taken on May 10, 201[3], at the
Lower Pottsgrove Police Department for failure to give
Miranda warnings.
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5
A brief that discusses in depth only a few issues is almost always more
persuasive than one that addresses a dozen issues, but spends only a few
paragraphs on each. “[W]e have said many times that urging a multitude of
errors on appeal is generally seen as bad appellate strategy because the
weaker or non-meritorious issues tend to detract from the more meaningful
issues which may support a finding of reversible error.” Carpinet v.
Mitchell, 853 A.2d 366, 369 (Pa. Super. 2004). We remind Freeman’s
counsel that “[a]ppellate advocacy is measured by effectiveness, not
loquaciousness.” Kenis v. Perini Corp., 682 A.2d 845, 847 (Pa. Super.
1996) (quoting Ruggero J. Aldisert, The Appellate Bar: Professional
Competence and Professional Responsibility—A View from the Jaundiced Eye
of One Appellate Judge, 11 Cap. U. L. Rev. 445, 458 (1982)); see also Fifth
Third Mortgage Co. v. Chicago Title Ins. Co., 692 F.3d 507, 509 (6th Cir.
2012) (“When a party comes to us with nine grounds for reversing the
district court, that usually means there are none.”).
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2. Whether the trial court erred in not suppressing the fruits of
the search of [Freeman’s] home where the police removed
[Freeman] from the house in order to gain consent from his
girlfriend.
3. Whether the [trial] court erred in allowing the admission of
the cellular telephones found in [Freeman’s] trash can.
4. Whether the warrant to search [Freeman’s] phones lacked
probable cause.
5. Whether [Freeman’s] car was unlawfully seized without a
warrant.
6. Whether the [trial] court erred in not severing [Freeman’s]
trial from the co-defendants.
7. Whether the [trial] court erred in allowing the statement of
co-defendant Miller into evidence.
8. Whether the statement of co-defendant Miller was properly
redacted.
9. Whether the [trial] court erred in denying [Freeman’s]
motion to exclude cell phone testimony.
10. Whether the evidence at trial was insufficient to sustain a
conviction of the crimes charged.
11. Whether the verdict of the jury was against the weight of the
evidence.
12. Whether there was unlawful jury tampering by the
prosecution.
Brief for Freeman at 3-4.
In his first five issues, Freeman maintains that the trial court erred in
denying his pre-trial motion to suppress evidence. The following standard of
review applies to these challenges:
Our standard of review of an order denying a motion to suppress
evidence is limited to determining whether the findings of fact
are supported by the record and whether the legal conclusions
drawn from those facts are in error. Commonwealth v.
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Crompton, 682 A.2d 286 (Pa. 1996); Commonwealth v.
Chambers, 598 A.2d 539 (Pa. 1991). In making this
determination, this [C]ourt may only consider the evidence of
the Commonwealth’s witnesses, and so much of the witnesses
for the defendant, as fairly read in the context of the record as a
whole, which remains uncontradicted. Id. If the evidence
supports the findings of the trial court, we are bound by such
findings and may reverse only if the legal conclusions drawn
therefrom are erroneous. Id.
Commonwealth v. Jones, 758 A.2d 228, 229 (Pa. Super. 2000) (citations
modified).
We begin with Freeman’s contention that the trial court should have
suppressed the statements that he made to detectives on May 10, 2013,
because the police failed to advise him of his Miranda rights. Freeman’s
argument is without merit.
It is a fundamental precept of constitutional law that a suspect subject
to a custodial interrogation by police must be warned that he has the right to
remain silent, that anything he says may be used against him in court, and
that he is entitled to the presence of an attorney. Miranda, 384 U.S. at
469. If an individual is not advised of those rights prior to a custodial
interrogation, any evidence obtained through the interrogation is
inadmissible at trial. In re K.Q.M., 873 A.2d 752, 755 (Pa. Super. 2005).
The Miranda safeguards are triggered “whenever a person in custody is
subjected to either express questioning or its functional equivalent.” Rhode
Island v. Innis, 446 U.S. 291, 292 (1980). Instantly, we focus our
discussion upon whether Freeman was “in custody” for Miranda purposes at
the time of his statement, because there is no doubt that Detective Minzola’s
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questioning constituted an interrogation. Innis, 446 U.S. at 292 (defining
interrogation to include express questioning and its functional equivalent).
We have explained that an individual is in custody for Miranda
purposes when he “is physically denied . . . his freedom of action in any
significant way or is placed in a situation in which he reasonably believes
that his freedom of action or movement is restricted by the interrogation.”
K.Q.M., 873 A.2d. at 755 (citing Commonwealth v. Williams, 650 A.2d
420, 427 (Pa. Super. 1994)). “[T]he police officer’s subjective intent does
not govern the [custody] determination,” instead we look to “the reasonable
belief of the individual being interrogated.” Commonwealth v. Zogby, 689
A.2d 280, 282 (Pa. Super. 1997). In order to ascertain the defendant’s
reasonable belief, the reviewing court must consider the totality of
circumstances, including factors such as “the basis for the detention; the
duration; the location; whether the suspect was transferred against his will,
how far, and why; whether restraints were used; the show, threat, or use of
force; and the methods of investigation used to confirm or dispel
suspicions.” Commonwealth v. Busch, 713 A.2d 97, 101 (Pa. Super.
1998).
Here, the record amply supports the trial court’s finding that Freeman
was not in custody for Miranda purposes. Freeman voluntarily accompanied
the detectives to the Lower Pottsgrove Township Police Station. The
detectives did not show, use, or threaten to use force. They did not transfer
Freeman against his will. They did not restrain Freeman. They were
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dressed in formal business attire, drove an unmarked sedan, and had their
firearms concealed. Finally, they reminded Freeman multiple times that he
was not under arrest and that he was free to leave at any time. In light of
these factors, Freeman’s first issue lacks merit.
In his second issue, Freeman argues that trial court should have
suppressed the cell phones that Detective Richard found at the bottom of a
garbage can in Freeman’s home, because “[t]he police used trickery to
obtain third-party consent.” Brief for Freeman at 12 (citing
Commonwealth v. Slaton, 608 A.2d 5 (Pa. 1992)). Relatedly, in his third
issue, Freeman argues that, even “if the consent is deemed valid, the search
of the trash can exceeded the scope of [Nixon’s] consent.” Id. Freeman
has waived both of these claims because he failed to raise them before the
trial court.
“[A]ppellate review of an order denying suppression is limited to
examination of the precise basis under which suppression initially was
sought; no new theories of relief may be considered on appeal.”
Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa. Super. 2006);
Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (“When a
defendant raises a suppression claim to the trial court and supports that
claim with a particular argument or arguments, the defendant cannot then
raise for the first time on appeal different arguments supporting
suppression.”).
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It is well-settled law that motions to suppress evidence are
decided prior to the beginning of trial. Moreover, pre-trial
rulings on the suppression of evidence are final. In sum,
suppression motions must ordinarily be made before the trial to
the suppression court, they must be made with specificity and
particularity as to the evidence sought to be suppressed and the
reasons for the suppression, and the suppression court’s
determination is to be final, except in the case of evidence not
earlier available.
Commonwealth v. Metzer, 634 A.2d 228, 233 (Pa. Super. 1993) (citations
omitted).
Although the burden in suppression matters is on the Commonwealth
to establish “that the challenged evidence was not obtained in violation of
the defendant’s rights,” Pa.R.Crim.P. 581(D), that burden is triggered only
when the defendant “state[s] specifically and with particularity the evidence
sought to be suppressed, the grounds for suppression, and the facts and
events in support thereof.” Commonwealth v. McDonald, 881 A.2d 858,
860 (Pa. Super. 2005). Thus, when a defendant’s motion to suppress does
not assert specifically the grounds for suppression, he or she cannot later
complain that the Commonwealth failed to address a particular theory never
expressed in that motion. McDonald, 881 A.2d at 860; Commonwealth v.
Quaid, 871 A.2d 246, 249 (Pa. Super. 2005) (“[W]hen a motion to suppress
is not specific in asserting the evidence believed to have been unlawfully
obtained and/or the basis for the unlawfulness, the defendant cannot
complain if the Commonwealth fails to address the legality of the evidence
the defendant wishes to contest.”).
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Nowhere in his motion to suppress did Freeman aver that Nixon’s
consent was invalid, nor did he allege that Detective Richard’s search
exceeded the scope of that consent. Moreover, when the trial court asked
Freeman to state his basis for requesting suppression on the record at the
commencement of the suppression hearing, Freeman did not raise such an
argument. See N.T.S., 1/7/2014, at 16-17 (arguing that the search
warrants the police obtained were unsupported by probable cause). His
failure to advance these particular legal theories in the first instance before
the trial court renders his claims waived.
Next, Freeman argues that the trial court erred in denying his motion
to suppress the data stored on his cell phones because the search warrant
obtained by detectives was not supported by probable cause. Brief for
Freeman at 13. The gist of Freeman’s argument is that the search warrant
lacked probable cause because it relied entirely upon Teel’s confession to
detectives, wherein he identified Freeman as a co-conspirator in the robbery,
kidnapping, and murder. Id. (“[T]he affidavit of probable cause . . . was
based solely on the uncorroborated statements of co-defendant Teel.
Because of this, the affidavit lacked probable cause and the information
obtained from the phones should have been suppressed.”). We disagree.
The trial court did not err in holding that the issuing magistrate had a
substantial basis for concluding that probable cause existed. See
Commonwealth v. Baker, 615 A.2d 23, 25 (Pa. 1992) (“[T]he duty of the
reviewing court is simply to ensure that the magistrate had a substantial
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basis for . . . concluding that probable cause existed.”). With regard to the
somewhat elusive concept of probable cause, we have explained as follows:
“[P]robable cause does not involve certainties, but rather ‘the
factual and practical considerations of everyday life on which
reasonable and prudent men act.’” Commonwealth v. Wright,
867 A.2d 1265, 1268 (Pa. Super. 2005) (quoting
Commonwealth v. Romero, 673 A.2d 374, 376 (Pa. Super.
1996)). “It is only the probability and not a prima facie showing
of criminal activity that is a standard of probable cause.”
Commonwealth v. Monaghan, 441 A.2d 1318 (Pa. Super.
1982) (citation omitted); see also Illinois v. Gates, 462 U.S.
213, 238 (1983) (holding that probable cause means “a fair
probability that contraband or evidence of a crime will be
found.”); Commonwealth v. Lindblom, 854 A.2d 604, 607
(Pa. Super. 2004) (reciting that probable cause exists when
criminality is one reasonable inference, not necessarily even the
most likely inference). To this point on the quanta of evidence
necessary to establish probable cause, the United States
Supreme Court recently noted that “[f]inely tuned standards
such as proof beyond a reasonable doubt or by a preponderance
of the evidence, useful in formal trials, have no place in the
probable cause decision.” Maryland v. Pringle, 540 U.S. 366,
371 (2003) (citations omitted).
Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)
(citations modified).
Instantly, in his affidavit of probable cause, Detective Paul Bradbury
set forth Teel’s narrative of the crimes. According to Teel, Freeman drove
him, along with Miller and Collier, to rob Borowy. Freeman waited in the car
a short distance away while his cohorts entered Borowy’s home and stole
approximately $1,000. When Freeman’s co-defendants were ready to leave
the home, one of them called Freeman’s cell phone, and Freeman picked
them up immediately thereafter.
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In the affidavit, Detective Bradbury also averred that Detective
Richard went to Freeman’s home, and found two of Freeman’s cell phones in
a kitchen garbage can. Nixon told Detective Richard that she and Freeman
were looking out the window when the detectives pulled up in front of the
residence. She stated that Freeman might have discarded his phones at
that time. Finally, Freeman falsely told Detectives Minzola and Campbell
that he owned only a single cell phone. Although he gave the detectives
three possible locations within his home where he said that he might have
his phone, Freeman did not mention the kitchen garbage can.
The facts contained within Detective Bradbury’s affidavit of probable
cause provided the issuing magistrate with a substantial basis to conclude
that there was a fair probability that evidence of criminal activity would be
found on Freeman’s cell phones. Therefore, Freeman’s fourth issue is
without merit.
In his fifth issue, Freeman contends that the police illegally seized his
Buick LeSabre. Here, Freeman argues that, when detectives discovered his
vehicle outside of a garage in Philadelphia, they “could have secured the
vehicle at that location, posted an officer there, and obtained a warrant.”
Brief for Freeman at 14. Instead, the detectives towed the Buick to a secure
holding facility and applied for a search warrant. Freeman maintains that
this constituted an illegal seizure because no exigent circumstances were
present. We disagree.
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Freeman misunderstands the law applicable to his suppression claim.
The Pennsylvania Supreme Court recently clarified that “[t]he prerequisite
for a warrantless search [or seizure] of a motor vehicle is probable cause to
search; no exigency beyond the inherent mobility of a motor vehicle is
required.” Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014). In
abolishing the exigency prerequisite in the context of the automobile
exception, the Supreme Court specifically discussed the impracticability of
such a requirement in circumstances similar to those sub judice.
[T]he question of whether, and under what circumstances, a
police officer is required to guard a vehicle stopped in a public
place while waiting for another officer to secure a search warrant
are far from clear. A related issue is whether police must
present evidence as to the probability that one or more third
parties—who may very well be completely unknown to the
officers—might move a vehicle or tamper with the evidence
therein while a warrant is being sought. These are fact-intensive
issues, far from amenable to articulable rules or some other form
of judicial guidance that law enforcement officers operating in
the field could readily apply.
[O]ur fractured jurisprudence in the area of warrantless motor
vehicle searches has often turned on small details in the midst of
a complex factual scenario, details which have been given
varying emphasis over time by different members of this Court.
Accordingly, it remains difficult, if not impossible, for police
officers in the field to determine how this Court would rule in
motor vehicle search and seizure cases, the circumstances of
which are almost endlessly variable. To provide greater
uniformity in the assessment of individual cases and more
consistency with regard to the admissibility of the fruits of
vehicular searches based on probable cause, a more easily
applied rule—such as that of the federal automobile exception—
is called for. See California v. Acevedo, 500 U.S. 565, 577
(1991).
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Id. at 136-37.
Freeman does not dispute that probable cause existed (i.e., that there
was a fair probability that contraband or evidence of a crime would be found
in the Buick). Nothing more was required to justify the seizure. Freeman’s
only argument on this issue is that no exigent circumstances were present.
However, “no exigency beyond the inherent mobility of a motor vehicle is
required.” Gary, 91 A.3d at 138.6 Thus, his claim necessarily fails.
In his sixth, seventh, and eighth issues, Freeman argues that the trial
court erred in denying his motion to sever his trial from that of his co-
defendants. According to Freeman, the introduction of Miller’s confession at
trial violated his rights under the Confrontation Clause.7 Brief for Freeman
at 16 (citing Bruton, supra). We disagree.
The decision whether to grant a motion for severance is within the
sound discretion of the trial court and “should not be disturbed absent a
manifest abuse of discretion.” Commonwealth v. Chester, 587 A.2d
1367, 1372 (Pa. 1991).
In Bruton, the United States Supreme Court held that a non-testifying
co-defendant’s confession, which implicates another defendant in the
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6
Although, the fact that an unknown male was cleaning the interior of
Freeman’s vehicle when the detectives found it strongly supports a finding of
exigent circumstances.
7
“In all criminal prosecutions, the accused shall enjoy the right to . . .
be confronted with the witnesses against him.” U.S. Const. amend. VI.
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charged offense, is inadmissible against the defendant because it violates his
Sixth Amendment right to confront and to cross-examine any witnesses
testifying against him. However, the Supreme Court subsequently held that
the Confrontation Clause is not violated by the admission of a non-testifying
co-defendant’s confession where the statement is redacted to eliminate any
reference to the defendant and is accompanied by a limiting instruction.
See Richardson v. Marsh, 481 U.S. 200 (1987). In Commonwealth v.
Cannon, 22 A.3d 210 (Pa. 2011), our own Supreme Court explained as
follows:
The Confrontation Clause guarantees a criminal defendant the
right to cross-examine witnesses. Richardson v. Marsh, 481
U.S. 200, 206 (1987). Ordinarily, a witness whose testimony is
introduced at a joint trial is not considered a witness “against” a
defendant if the jury is instructed to consider the testimony only
against a co-defendant. This principle is in accord with the well-
established presumption that jurors will abide by their
instructions. In Bruton, however, the United States Supreme
Court recognized that “there are some contexts in which the risk
that the jury will not, or cannot, follow instructions is so great,
and the consequences of failure so vital to the defendant, that
the practical and human limitations of the jury system cannot be
ignored.” Bruton, 391 U.S. at 135. Accordingly, “[t]he Bruton
Court held that, if a non-testifying co-defendant’s confession
directly and powerfully implicates the defendant in the crime,
then an instruction to the jury to consider the evidence only
against the co-defendant is insufficient, essentially as a matter
of law, to protect the defendant’s confrontation rights.”
Commonwealth v. Brown, 925 A.2d 147, 157 (Pa. 2007)
(citing Bruton, 391 U.S. at 135-36).
The United States Supreme Court examined the per se Bruton
rule in Richardson, supra, and emphasized its narrow scope.
Therein, the Court held that the “Confrontation Clause is not
violated by the admission of a non-testifying co-defendant’s
confession with a proper limiting instruction when . . . the
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confession is redacted to eliminate not only the defendant’s
name, but any reference to his or her existence.” Richardson,
481 U.S. at 211. Consistent with the High Court’s
pronouncement and our own line of cases, we have held that
substituting the neutral phrase “the guy” or “the other guy” for
the defendant’s name is an appropriate redaction. See
Commonwealth v. Travers, 768 A.2d 845, 851 (Pa. 2001).
Cannon, 22 A.3d at 217-18 (some citations omitted).
Instantly, the Commonwealth redacted Miller’s statement and
substituted all references to Collier and Freeman with the neutral phrases
“the first guy” and “the second guy.” The trial court then instructed the jury
to consider Miller’s confession as evidence against Miller only, and not as
evidence against Collier or Freeman. Freeman acknowledges that
Pennsylvania courts consistently have held that such a method of redaction
satisfies the dictates of Bruton. See Travers, 768 A.2d at 851;
Commonwealth v. McGlone, 716 A.2d 1280, 1286 (Pa. Super. 1998)
(holding that use of the phrase “the other man” not only eliminates the
name of the defendant, i.e., the Bruton proscription, it also eliminates a
suggestion of alteration).
Nevertheless, Freeman argues that “the number of times that [‘the
second guy’] was used in this case was unconscionable.” Brief for Freeman
at 19. He maintains that, because the phrase “the second guy” was used
over twenty times throughout Miler’s statement, “the jury saw right through
this redaction and assumed that Miller was speaking about Collier and
Freeman.” Id. Freeman does not cite any legal authority to support his
contention that a defendant’s confrontation rights are violated where a
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substituted neutral term appears too frequently in a redacted statement, and
we are aware of none. To the contrary, the United States Supreme Court
has declined to extend its holding in Bruton to a co-defendant’s confession
that was redacted to omit any reference to the defendant, but could be
linked to the defendant by inference or implication. See Richardson, 481
U.S. at 211.
In light of the governing principles in this area, as most recently
elucidated in Cannon, the redaction here, combined with the trial court’s
cautionary instruction, sufficed to protect Freeman’s Sixth Amendment right
to confrontation. Because the redacted statement facially was not
incriminating, the trial court did not err in denying Freeman’s motion to
sever.
In his ninth issue, Freeman argues that “the [trial] court erred in
denying [his] motion to exclude cell phone testimony.” Brief for Freeman at
19. Specifically, Freeman argues that the trial court should have held a
Frye8 hearing to determine whether the methodology used by the
Commonwealth’s cellular telephone network expert is generally accepted in
the scientific community. We disagree.
“[T]he admission of expert scientific testimony is an evidentiary matter
for the trial court’s discretion and should not be disturbed on appeal unless
____________________________________________
8
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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the trial court abuses its discretion.” Grady v. Frito-Lay, Inc., 839 A.2d
1038, 1046 (Pa. 2003). “[T]he proponent of expert scientific evidence bears
the burden of establishing all of the elements for its admission under Pa.R.E.
702, which includes showing that the Frye rule is satisfied.” Id. at 1045.
In determining whether novel scientific evidence is admissible in
criminal trials, Pennsylvania courts apply the test set forth in
Frye. See Commonwealth v. Topa, 369 A.2d 1277, 1281 (Pa.
1977) (adopting the Frye test). Pursuant to Frye, to be
admissible, such evidence must have gained general acceptance
in the relevant scientific community. This Court has generally
required that both the theory and technique underlying novel
scientific evidence must be generally accepted.
Commonwealth v. Blasioli, 713 A.2d 1117, 1119 (Pa. 1998) (some
citations omitted; footnote omitted).
“[A] Frye hearing is warranted when a trial judge has articulable
grounds to believe that an expert witness has not applied accepted scientific
methodology in a conventional fashion in reaching his or her conclusions.”
Betz v. Pneumo Abex, LLC, 44 A.3d 27, 53 (Pa. 2012). Instantly,
Freeman filed a motion in limine, which provided as follows:
1. The Commonwealth intends to introduce evidence from
[Freeman’s] cell phone records to prove his whereabouts at
the time of the home invasion and murder.
2. The proponent of said testimony must explain the manner in
which cell phone signals are received by cell phone towers in
a given geographic area.
3. Said testimony will require an expert’s scientific, technical or
other specialized knowledge that is beyond that possessed by
the average layperson.
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4. Said testimony should be excluded under Pennsylvania Rule
of Evidence 702, which requires that the “expert’s
methodology is generally accepted in the relevant field.”
Pa.R.E. 702(c); Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923).
5. The Commonwealth has not provided an expert report
regarding the testimony to be offered in regard to
[Freeman’s] cell phone usage.
6. [Freeman] requests that the court direct the Commonwealth
to furnish such an expert report in accordance with
Pennsylvania Rule of Criminal Procedure 573(B)(2)(b).
WHEREFORE, [Freeman] moves for the exclusion of any cell
phone testimony.
Freeman’s Motion to Exclude Cell Phone Testimony, 1/10/2014, at 1
(unnumbered).
Because the Commonwealth had not yet provided Freeman with an
expert report when he filed his motion in limine, he did not, and could not,
allege specifically how the Commonwealth’s expert testimony failed to meet
the Frye standard. The trial court, in order to give Freeman an opportunity
to amend his motion, did not rule on it until after the Commonwealth served
him with a copy of its expert’s report. Trial Court Opinion, 1/28/2015, at 21.
Freeman did not file an amended motion. On April 15, 2014, the day that
Freeman’s trial commenced, the court entered an order denying his motion
without prejudice to any further objections Freeman might have raised at
trial.
The trial court, in its April 15, 2014 order, agreed with Freeman that
the Commonwealth’s cell phone location evidence “required the testimony of
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a witness qualified as an expert in the relevant field.” Id. at 22. However,
the trial court held that Freeman failed to plead any facts in support of his
proposed remedy (i.e., exclusion of the Commonwealth’s “cell phone
testimony”). Accordingly, the trial court held that Freeman “retained the
right to object to the evidence at issue on grounds other than the conclusory
assertion that the expert’s methodology was not generally accepted in the
[scientific community].” Id.
Before this Court, Freeman now argues that “he was deprived of his
right to a Frye hearing[.]” Brief for Freeman at 21. This argument is
unavailing for two reasons. First, Freeman did not request a Frye hearing.
In his motion in limine, Freeman sought to exclude the Commonwealth’s cell
phone location evidence; he never averred that a hearing was necessary to
develop his claim. Second, Freeman’s conclusory motion did not merit a
Frye hearing. As explained supra, “a Frye hearing is warranted when a trial
judge has articulable grounds to believe that an expert witness has not
applied accepted scientific methodology in a conventional fashion in reaching
his or her conclusions.” Betz, 44 A.3d at 53 (emphasis added). Freeman’s
motion did not include any facts to suggest that the Commonwealth’s expert
failed to apply the accepted scientific methodology in reaching his
conclusions. Indeed, because Freeman filed his motion before the
Commonwealth had provided him with an expert report, he necessarily could
not have made such a showing. The trial court did not abuse its discretion
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by not holding a Frye hearing, which the circumstances did not warrant and
Freeman did not request.9
In his tenth issue, Freeman contends that “the evidence at trial was
insufficient to sustain a conviction of the crimes charged.” Brief for Freeman
at 21.10 Freeman has waived this issue.
The Pennsylvania Supreme Court has explained that Rule 1925 is a
crucial component of the appellate process, which “is intended to aid trial
judges in identifying and focusing upon those issues which the parties plan
to raise on appeal.” Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.
1998). “When an appellant fails adequately to identify in a concise manner
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9
In his brief, Freeman notes that his co-defendant, Collier, also filed a
motion to exclude the Commonwealth’s expert testimony “regarding cell site
coverage.” Brief for Freeman at 21. Freeman contends that the trial court,
in response to Collier’s motion, held that “the proposed testimony [was] not
admissible by reason of failing to satisfy the standard established by Frye.”
Id. Freeman misrepresents the trial court’s order, which he purports to
quote directly. The court actually held that “the proposed testimony [was]
not inadmissible by reason of failing to satisfy the standard established by
Frye.” Order, 4/15/2014, at 1 (emphasis added).
10
When examining a challenge to the sufficiency of evidence:
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. . . . When reviewing a sufficiency claim the court is
required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted).
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the issues sought to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues.” In re
Estate of Daubert, 757 A.2d 962, 963 (Pa. Super. 2000). “In other words,
a Concise Statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no Concise Statement
at all.” Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001).
“In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant’s Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013) (citing Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009)). “Such specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond a
reasonable doubt.” Gibbs, 981 A.2d at 281.
In his Rule 1925(b) statement, Freeman argued only that “[t]he
evidence at trial was insufficient to sustain a conviction of the crimes
charged.” Freeman’s Concise Statement, 1/28/2015, at 1 (unnumbered).
Freeman’s 1925(b) statement does not specify which element or elements of
the relevant crimes, or even which crimes, the Commonwealth failed to
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prove beyond a reasonable doubt.11 This assertion is far too vague to
warrant meaningful appellate review. See Garland, supra. Thus, Freeman
has waived his challenge to the sufficiency of the evidence.
Freeman also has waived his eleventh issue, wherein he challenges the
weight of the evidence. Here too, Freeman failed to specify in his Rule
1925(b) statement which verdict or verdicts were contrary to the weight of
the evidence, and he neglected to offer specific reasons as to why those
verdicts were contrary to the weight of the evidence. Instead, Freeman
asserted only that “[t]he verdict of the jury was against the weight of the
evidence.” Freeman’s Concise Statement, 1/28/2015, at 1 (unnumbered).
As explained supra, “a Concise Statement which is too vague to allow the
court to identify the issues raised on appeal is the functional equivalent of no
Concise Statement at all.” Dowling, 778 A.2d at 686; see
Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002) (holding
that appellant waived his challenge to the weight of the evidence where his
1925(b) statement merely asserted that “[t]he verdict of the jury was
against the weight of the credible evidence as to all of the charges”).
In his final issue, Freeman contends that “there was unlawful jury
tampering by the prosecution.” Brief for Freeman at 24. Freeman has
waived this issue because his appellate brief falls hopelessly short of
____________________________________________
11
Freeman’s appellate brief similarly lacks any discussion of the offenses
for which he was convicted or the elements thereof.
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presenting it in a manner sufficient to justify our review. Without even
noting our standard of appellate review, Freeman’s substantive argument on
this claim begins and ends with the unsubstantiated assertion that “the
prosecutor and the lead detective were in the jury room during
deliberations.”12 Brief for Freeman at 24. Freeman then concludes, without
any supporting legal analysis, that the trial court should have held an
evidentiary hearing to address his allegation. Id.
“The failure to develop an adequate argument in an appellate brief
may result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth
v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (citation, quotation
marks and brackets omitted). While this Court may overlook minor defects
or omissions in an appellant’s brief, we will not act as his or her appellate
counsel. Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007).
Freeman has made no effort whatsoever to discuss the applicable law or to
link the facts of his case to that law. His failure to develop a coherent legal
argument in support of his claim results in waiver of this issue.
Judgment of sentence affirmed.
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12
In violation of Pa.R.A.P. 2119(e), Freeman does not direct us to the
specific place in the record where he preserved this issue for our review. He
also has failed to comply with Pa.R.A.P. 2111, which requires that an
appellant append to his or her brief a copy of the statement of errors
complained of on appeal filed with the trial court.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2015
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