Com. v. Fitzpatrick, A. , 181 A.3d 368 ( 2018 )

J-A05023-18 & J-A05024-18
2018 Pa. Super. 55
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON FITZPATRICK :
:
Appellant : No. 2636 EDA 2015
Appeal from the Judgment of Sentence August 14, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004733-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON FITZPATRICK :
:
Appellant : No. 1407 EDA 2016
Appeal from the Judgment of Sentence April 21, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004733-2012
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
OPINION BY MURRAY, J.: FILED MARCH 14, 2018
Aaron Fitzpatrick (Appellant) appeals, at docket 2636 EDA 2015, from
the judgment of sentence entered on August 14, 2015, after a jury convicted
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* Former Justice specially assigned to the Superior Court.
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him of murder of the first degree, murder of the third degree of an unborn
child,1 and other offenses. Appellant additionally appeals, at 1407 EDA 2016,
from the judgment of sentence entered on April 21, 2016, following the trial
court’s sua sponte modification of Appellant’s sentence for murder of the third
degree of an unborn child. Upon careful review, we dismiss as moot the
appeal docketed at 2636 EDA 2015, and affirm the judgment of sentence at
1407 EDA 2016.
The trial court stated:
The evidence adduced at trial established that on February 16,
2012, at or about 2:25 am, the decedent, Tiffany Gillespie, was
found in the basement of the residence located at 2327 Mildred
Street. She was pronounced dead on the scene. The cause of
death was a gunshot wound to her head.
When detectives arrived at the residence, they found a cellular
phone near the decedent. Detective John Keen looked through
the phone and found one number consistently showing in the
phone’s call log. Detective Keen radioed back to his superiors and
requested that someone be assigned to pull the phone information
for both the phone number in the call log and the phone which
was in his possession. Shortly thereafter, Detective Keen was
given the results of the search into the subscriber of the phone in
the call log; [Appellant] was the owner of the cellular phone
number within the call logs of the phone Detective Keen had
secured.
Trial Court Opinion, 2/6/17, at 2 (citations to notes of testimony omitted).
As discussed in further detail infra, Appellant subsequently provided
two signed statements to the police, admitting that he shot the decedent.
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1 18 Pa.C.S.A. §§ 2502(a), 2604(c)(1).
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Appellant was charged with murder, murder of an unborn child, and
related offenses. Appellant filed a motion to suppress both of his statements
to police, and the trial court conducted a hearing on August 4, 2015. The trial
court explained:
[Appellant’s] basis for the motion was: (1) that [Appellant] was
not given proper Miranda[2] warnings and (2) that [Appellant’s]
statement[s] were the product of improper influences or exertions
by the interrogating detectives. These “influences” allegedly
included both promises and force exerted by the interrogating
detectives, specifically Detective Dove. By way of background,
between the preliminary hearing and [suppression] hearing,
Detective Dove [was] removed from his position for improprieties
he engaged in by covering up a murder allegedly committed by a
paramour. Although subpoenaed, under the advice of [his]
counsel, [Detective Dove] asserted his Fifth Amendment right
against self-incrimination. Detective Harkins was the other
detective who sat in on both interviews with [Appellant], as noted
on the face of both interviews. Detective Harkins and [Appellant]
testified at the motion hearing regarding the interviews and the
statements. Before Mr. Dove asserted his Fifth Amendment right,
[Appellant] intended to call Mr. Dove to question him about
several collateral improprieties that he had engaged in while a
detective in an effort to cast doubt on the weight and/or legitimacy
of the interviews.
Detective Harkins testified that at or near 9:30 am of the date
of the murder, he and fellow detectives were on the 600 block of
Emily Street to execute a search warrant on [Appellant’s] mother’s
home. While there, Detective Keen spoke with [Appellant’s]
mother. She stated that [Appellant] was on his way to the First
Police District. Detective Keen called the First Police District to
inform them that [Appellant] may be arriving there and that he
should be notified if and when [Appellant] arrived. When
[Appellant] arrived, Detective Keen requested that uniformed
officers transfer [Appellant] to the Homicide Unit. Detectives
Dove and Harkins were at a diner “grabbing a meal” when they
were informed that [Appellant] had arrived at the Homicide Unit.
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2 See Miranda v. Arizona, 384 U.S. 436 (1966).
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Both detectives went to the Homicide Unit to meet up with and
interview [Appellant] when he arrived.
When both detectives arrived, they saw [Appellant] sitting on
a bench in the waiting area. [Appellant] was not in handcuffs
when they arrived. They escorted [Appellant] into the secure area
of the Homicide Unit and took him to their Lieutenant’s office for
the purpose of an interview. After obtaining some biographical
information from [Appellant], Detective Dove, in Detective
Harkins’ presence, presented [Appellant] with a 75-331 form
which stated [Appellant’s] Miranda warnings and which informed
him that the purpose of the interview was to question [Appellant]
about the murder of decedent. If [Appellant] was willing to waive
his panoply of rights, Detective Dove instructed him to sign the
form; [Appellant] did so. At all times throughout both interviews,
Detective Dove asked questions and recorded [Appellant’s]
answers. This interview and subsequent interview documented
that both Detectives Dove and Harkins were present and
conducting the questioning.
The Miranda warnings were presented to and executed by
[Appellant] at 11:50am. [Appellant’s] first interview was
memorialized starting at 1:14 pm and ending at about 2:25 pm.
During that gap of over an hour, Detective Harkins testified that
he was present with Detective Dove during the interview and that
[Appellant’s] responses to informal questioning were general
denials about his involvement. By 1:14 pm, [Appellant] admitted
to the killing; he claimed that the weapon had been tossed into a
sewer . . . and that he had incinerated the clothes he wore that
night. Using Google Maps, [Appellant] showed both detectives the
corner at which he allegedly tossed the weapon. Detective
Harkins exited the Lieutenant’s office for a short period of time to
inform Detective Keen of [Appellant’s] statement [as to the
location of the gun]. Detective Harkins returned to the
Lieutenant’s office and sat in on the remainder of the interview.
When [Appellant] adopted the interview, he signed the first two
pages of the complete interview and printed his name on the
remaining pages. At the conclusion of the interview, [Appellant]
was moved from the Lieutenant’s office to Interview Room B and
was left by himself.
Detective Keen called another detective . . . and requested that
he check the sewer for the weapon. When the weapon was not
found, Detective Keen informed Detectives Dove and Harkins.
Detectives Dove and Harkins initiated a second interview which
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began at 2:58 pm and concluded at 3:30 pm. [The d]etectives
questioned [Appellant] about the truthfulness of his first recorded
interview. [Appellant] admitted that he had not been fully
truthful; he informed the detectives that the weapon and clothes
were at 2012 South Eighth Street. He informed them exactly
where the items could be found. Upon execution of a search
warrant, both the gun and clothes were found exactly where
[Appellant] stated the items would be located.
[Appellant] testified at the motion hearing. [He] denied that
the signature on the first two pages of the first interview record
were his . . . [but] did admit that he had signed the last page . . .
but only because Detective Dove told him to. [Appellant] also
stated that Detective Harkins had never been in the interview
room at all and that he only saw Detective Harkins standing
outside the Lieutenant’s office. [Appellant] stated that Detective
Dove threatened him . . . that if he did not sign the document, “it”
would be over for him. [Appellant] also stated that Detective Dove
used physical force and, in so doing, knocked out [Appellant’s]
front tooth.
* * *
Based on credibility, this court found that the Commonwealth
had met its burden and denied [Appellant’s] motion to suppress.
Trial Court Opinion, 2/6/17, at 5-8 (citations to notes of testimony omitted).
Subsequently, at the conclusion of trial on August 14, 2015, the jury
found Appellant guilty of first degree murder, third degree murder of an
unborn child, carrying a firearm without a license,3 and possessing an
instrument of crime.4 That same day, the trial court sentenced Appellant to,
inter alia, life imprisonment for the first-degree murder conviction. The court
also imposed a concurrent term of life imprisonment for third-degree murder
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3 18 Pa.C.S.A. § 6106(a)(1).
4 18 Pa.C.S.A. § 907(a).
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of an unborn child, noting that the law required a mandatory life sentence
because Appellant also had, in this case, another murder conviction.5 N.T.,
8/14/15, at 9; see 42 Pa.C.S.A. § 9715(a) (generally, any person convicted
of murder of the third degree who has previously been convicted at any time
of murder shall be sentenced to life imprisonment).
Appellant did not file a post-sentence motion, but on August 20, 2015,
filed a timely notice of appeal, docketed in this Court at 2636 EDA 2015. On
April 21, 2016, while Appellant’s appeal was pending, the trial court sua
sponte modified his sentence for the third degree murder of an unborn child
conviction; the court vacated the term of life imprisonment and imposed 20
to 40 years’ imprisonment, to run concurrently with the life sentence for first-
degree murder. Although the trial court did not provide a reason for this
modification, we note that on October 5, 2015, this Court issued a decision in
Commonwealth v. Haynes, 125 A.3d 800 (Pa. Super 2015), holding that
third-degree murder of an unborn child did not trigger a mandatory life
sentence under 42 Pa.C.S.A. § 9715(a). Id. at 804-06.
On May 10, 2016, Appellant filed an appeal, docketed at 1407 EDA 2016,
from the April 21, 2016 resentencing order. The trial court directed Appellant
to file a Pa.R.A.P. 1925 concise statement of errors complained of on appeal,
and Appellant complied. In this Court, Appellant, as well as the
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5 The trial court additionally imposed concurrent sentences of 3½ to 7 years’
imprisonment for carrying a firearm without a license and 2½ to 5 years for
possessing an instrument of crime.
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Commonwealth, have filed identical briefs at both dockets.
In both appeals, Appellant raises the following issues for our review:
[1.] Whether the court abused its discretion when it denied
[A]ppellant’s motion to suppress his two written statements when
he testified at the motion’s hearing that the Homicide Detectives
threatened, physically abused and coerced him to make the
alleged statements all in violation of his 5th and 14th Amendment
rights under both the United States and Pennsylvania
Constitutions.
[2.] Whether the verdict was against the sufficiency of the
evidence to prove [A]ppellant guilty beyond a reasonable doubt.
Appellant’s Brief at 6.
Preliminarily, we note that the trial court lacked jurisdiction to modify
its original sentencing order. See 42 Pa.C.S.A. § 5505 (court, upon notice to
the parties may modify or rescind any order within 30 days after its entry “if
no appeal from such order has been taken or allowed”). Nonetheless, our
Supreme Court has held that Section 5505 does not impinge on a trial court’s
inherent power to correct patent errors despite the lack of traditional
jurisdiction. Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007). In
Holmes, our Supreme Court approved of the trial court’s sua sponte
correction of an illegal sentence despite the fact that the defendant had
already taken an appeal. Id. at 66.
As stated above, after Appellant took a timely appeal from his August
14, 2015 judgment of sentence, this Court decided Haynes, a decision which
would have applied to Appellant’s appeal and rendered illegal his term of life
imprisonment for third degree murder of an unborn child. See In re Cain,
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590 A.2d 291, 292 (Pa. 1991) (“An issue can become moot during the
pendency of an appeal due to . . . an intervening change in the applicable
law.”); Haynes, 125 A.3d at 804-06. Accordingly, pursuant to Holmes, we
hold that the trial court did not err in sua sponte modifying Appellant’s
sentence for third degree murder of an unborn child to comply with Haynes.
See Holmes, 933 A.3d at 66. We thus dismiss as moot the appeal docketed
at 2636 EDA 2015, and proceed to the merits of the appeal at 1407 EDA 2016.
Appellant first argues that the trial court erred in denying his motion to
suppress the two written statements he made to police, claiming that his
statements were involuntary. Appellant’s Brief at 12. Specifically, Appellant
cites his testimony at the suppression hearing that “he was coerced, physically
abuse [sic] and threated [sic] by Detective Dove,” and he was “punched in
the mouth losing a tooth.” Id. (citations to notes of testimony omitted).
We note our standard of review when addressing a challenge to the
denial of a suppression motion:
We may consider only the Commonwealth’s evidence and so much
of the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole.[6] Where the record
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6 We recognize that a majority of our Supreme Court held that, in the absence
of exceptional circumstances, we limit the scope of appellate review for
suppression denials to the suppression record, rather than the record as a
whole. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). However, a plurality of
the Supreme Court joined Justice Baer’s conclusion that the new rule of law
should apply prospectively to “all litigation commenced Commonwealth-wide
after [October 30, 2013].” This Court has comprehensively addressed the
issue of prospective application and has adopted the plurality rationale set
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supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error. An appellate court, of course, is not bound
by the suppression court’s conclusions of law.
Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016) (citation omitted).
“[I]t is the sole province of the suppression court to weigh the credibility of
witnesses,” and “the suppression court judge ‘is entitled to believe all, part or
none of the evidence presented.’” Commonwealth v. Blasioli, 685 A.2d
151, 157 (Pa. Super. 1996), affirmed, 713 A.2d 1117 (Pa. 1998).
“It is well-established that when a defendant alleges that his confession
was involuntary, the inquiry becomes not whether the defendant would have
confessed without interrogation, but whether the interrogation was so
manipulative or coercive that it deprived the defendant of his ability to make
a free and unconstrained decision to confess.” Commonwealth v.
Yandamuri, 159 A.3d 503, 525 (Pa. 2017) (internal citations omitted).
Voluntariness is the touchstone inquiry when deciding a motion to suppress a
confession, and voluntariness is determined upon review of the totality of the
circumstances. Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998).
In assessing the totality of the circumstances, the suppression court should
consider: “the duration and means of the interrogation; the defendant’s
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forth in L.J. Commonwealth v. Eichler, 133 A.3d 775, 778-780 (Pa. Super.
2016), appeal denied, 161 A.3d 791 (Pa. 2016). Accordingly, as the instant
matter commenced prior to the Supreme Court’s issuance of L.J., our scope
of review includes both the suppression record and the trial record. See id.
at 780.
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physical and psychological state; the conditions attendant to the detention;
the attitude exhibited by the police during the interrogation; and all other
factors that could drain a person’s ability to resist suggestion and coercion.”
Yandamuri, 159 A.3d at 525.
Here, the trial court expressly credited Detective Harkins’ testimony
regarding the voluntariness of Appellant’s statements. N.T., 8/4/15, at 142
(“[T]his is a credibility call [and] I think that when I just balance the credibility
issues here, I find that the Commonwealth has met its burden . . . ”). After
review of the record as a whole, we conclude that the trial court did not err in
denying Appellant’s motion to suppress his two written statements. At the
suppression hearing, Detective Harkins testified that Appellant received
Miranda warnings and was cooperative with the investigation. Id. at 14.
Detective Harkins also testified that neither he nor Detective Dove touched
Appellant at any time during the investigation, nor did they promise anything
to him in exchange for his testimony. N.T., 8/7/15, at 49; N.T., 8/4/15, at
14-15. Contrary to Appellant’s claim at the suppression hearing, both
Detective Harkins’ testimony and documentation of the interview indicated
that Detective Harkins was present during the interviews. The trial court
explicitly credited Detective Harkins’ testimony and discredited Appellant’s
claims to the contrary. See Trial Court Opinion at 9 (“[t]his court finds the
testimony of Detective Harkins credible”). We may not, as Appellant’s
argument would require, supplant the trial court’s credibility findings.
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Consequently, we hold that the trial court properly denied Appellant’s
suppression motion.
In his second issue, Appellant purports to challenge the sufficiency of
the evidence supporting his convictions. Specifically, he contends: “If the
Superior Court rules that [A]ppellant’s statements were involuntary then the
verdict is against the sufficiency of the evidence.” Appellant’s Brief at 10
(emphasis added). In making his conditional argument, Appellant concedes
that “[a]s it stands, from the trial the evidence is sufficient based on all
inferences in favor of the verdict winner.” Id. at 13.
The Commonwealth responds that Appellant’s argument does not
present a proper sufficiency claim, where the sufficiency of the evidence is not
assessed on a diminished record, but rather on all the evidence presented at
trial. Commonwealth’s Brief at 13, citing Commonwealth v. Smith, 568
A.2d 600, 603 (Pa. 1989) (in assessing the sufficiency of evidence, we are
called upon to consider all of the testimony presented during trial, without
consideration as to the admissibility of that evidence). We agree. Appellant
concedes that there was sufficient evidence to support his convictions.
Accordingly, we find no merit to Appellant’s claim.
Appeal at 2636 EDA 2015 is dismissed as moot.
Judgment of sentence at 1407 EDA 2016 affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/18
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